McPeak v. Missouri Pac. Ry. Co.

• Decision Date: 18 March 1895
• Citation: 30 S.W. 170,128 Mo. 617
• Parties: McPEAK v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

30 S.W. 170

128 Mo. 617

McPEAK v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 18, 1895.

ACTION AGAINST RAILROAD COMPANY — PASSENGER JUMPING FROM TRAIN — FALSE ALARM BY BRAKEMAN — CONTRIBUTORY NEGLIGENCE — CONDUCT OF TRIAL — REMARKS TO JURY.

1. On failure of the jury to agree, after being out 14 hours, the court spoke to them concerning the expense incurred in trying the case,

and, on the reply of one of the jurors that "there's eleven of us that could get together in about a minute," stated that he trusted "that every juror is acting rationally in the matter, and that nobody is acting from a dogmatic spirit, merely for the purpose of asserting his opinion." Held, that such remark was ground for reversal. Gantt, P. J., dissenting.

2. Where the brakeman stationed at the brake in the cupola of a caboose car, and so able to see up and down the track, on a signal for "Down brakes," excitedly and recklessly calls to the passengers in the car to "Jump!" "Jump for your lives!" the company is liable for injuries to persons jumping from the moving train, though there is no real danger, and it is not one of the brakeman's duties to warn passengers of danger.

3. In an action for such injuries, where plaintiff and two witnesses testify that the brakeman making the exclamation was stationed at the brake in the cupola, though his back was turned towards them, and though they are contradicted by the brakeman himself and three witnesses for defendant, who were in full view of the face of the man at the brake, and whose testimony is corroborated by other circumstances, the identity of the man at the brake is for the jury.

4. The fact that a passenger in such a case immediately leaps from the rear of the car in the opposite direction from which the train is moving, without first attempting to discover whether there is any real danger, he being aware at the time that the train was preceded a short distance by another, does not necessarily show negligence. Sherwood, J., dissenting.

Appeal from circuit court, Bates county; James H. Lay, Judge.

Action by John G. McPeak against the Missouri Pacific Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Action for damages for injuries received while a passenger on the defendant's train. Leaving off the usual formal allegations, the petition is as follows: "Plaintiff states that on the morning of March 12, 1892, he entered defendant's regular train over its interstate road at Butler, Missouri, as a passenger thereon from Butler to Foster, Bates county, Missouri; that said train was a `mixed train,' consisting of freight cars, a combination express, mail, and passenger car, and what is known as a `caboose car' attached to the passenger car, and used as a smoker, and was the rear car of the train. Plaintiff states that on said train the brakeman did and performed the duties of porter, and took charge of the passenger and caboose cars, calling stations, and assisting passengers on and off the cars, and giving them information and assistance, and looking after their safety and comfort, and having general supervision of the car and its occupants; that such are the duties of porter, and on its said train these duties are devolved on its brakeman by defendant. Plaintiff states: That he took his seat in said smoking or caboose car, and that the train left Butler about `on time,' being 7:15 a. m. That there was a train just in front of train on which plaintiff was a passenger, and also a work or gravel train just behind it. That after leaving Butler some three to five miles, and while said brakeman and another of defendant's employés were in the lookout, of said caboose car, the engine whistled `Down brakes,' and said brakeman or porter instantly, excitedly, negligently, and recklessly called out `Jump!' or `Jump for your lives!' Plaintiff, knowing that there was a train just in front and another just in the rear, started to get off the train by the rear platform. That, as he afterwards learned, said train was on a down grade, and running very rapidly, and there being no chain across in front of the rear door of the car, and plaintiff, not being able to turn to the steps, jumped and fell to the ground from the back part of the platform, through the opening, instead of getting off by the side steps, as he would and could have done if the chain guard had been properly placed and kept across the back end of the platform of said car. That by reason of the negligence and carelessness of defendant and its employés, as aforesaid, and as a direct result thereof, the large bone of plaintiff's right leg was broken, and in such a way as to involve permanently the knee joint, and the left leg was and is paralyzed from the knee to the hip joint, and the upper part of the large bone of the lower arm right at the elbow was broken, destroying the use of the joint, and breaking loose the ligaments and muscle attachments about the elbow, and the left shoulder was bruised and broken, so that the arm cannot be raised or moved sideways, and the wrist joint was so injured that its movement in any direction is destroyed, and the hand cannot be turned either forward, back, or sideways, and the hand and fingers have lost their motion and strength, so that by these injuries to the left arm, shoulder, elbow, and wrist the entire left arm is totally and permanently useless and paralyzed; and that by the fall and concussion the small of the back was so injured and affected that there is pain and soreness there, and plaintiff requires assistance and help to get up in the mornings; and that all of said injuries are permanent, and render plaintiff a cripple for life. That prior to these injuries plaintiff was of great strength, activity, and power, athletic and healthful. That since that time he has become weak, and lost strength and flesh, is without activity, and his general health has become greatly and permanently impaired. Plaintiff avers that he has suffered great pain and anguish of body and intense mental anxiety from the wounds, injuries, and bruises aforesaid, and was confined to his bed and house for six months, and can now get about only with the aid of canes and crutches. Plaintiff says that he was agent and attorney at Foster for various parties, and engaged in business, and that he realized therefrom the sum of $100 per month, all of which during the time he was so confined to his bed and house was a total loss to him, and that he has been at great expense in procuring medical and surgical attention and services, and that he has paid and is to pay therefor the sum of $200, and pleads the same and loss of time as special damages, averring the same to be $800. Plaintiff alleges that all of said injuries were occasioned by the fault, negligence, careless and indiscreet conduct of defendant, its agents, servants, and employés, in the way and manner hereinbefore stated, and that plaintiff himself was without fault or negligence, and in no manner contributed to said injuries by any fault or negligence of his own. Plaintiff avers that by the injuries aforesaid, and the pain and suffering and loss of time and money expended aforesaid, he has been damaged in the sum of thirty thousand dollars, for which sum and for his costs herein he prays judgment against said defendant." The answer of defendant is the following: "Said defendant, for answer to plaintiff's petition, denies each and every allegation therein contained; wherefore it prays to be discharged, with its costs. Said defendant, for further defense, states that, if said plaintiff sustained the injuries charged in petition, it was by reason of his own negligence, carelessness, and recklessness directly contributing thereto in jumping from the moving train, without any legal excuse therefor, and without any fault of this defendant; wherefore defendant prays to be discharged, with its costs." The reply was a general denial.

The facts in evidence are substantially these: On the 12th day of March, 1892, the defendant company was running a mixed train from Butler, in Bates county, to the town of Foster, in the same county, and beyond. This train was made up of a combination express, freight cars, a mail car, and a passenger car, and to the last-named car was attached what is commonly termed a "caboose," a car which was used as a smoker which was the rear car of the train. On the morning of the day mentioned, plaintiff, W. A. Ephland, Grant Goodenough, and F. M. Thrall were passengers, who preferred to ride in the caboose rather than in the passenger car, and the general course of the road is south until it reaches the junction of the two roads, some 3½ miles from Butler, where the road on which plaintiff was traveling branches off from the main line, and proceeds in a southwesterly and westerly direction, through Bates county, into the state of Kansas. The caboose in which plaintiff and the others named were riding had seats upon either side of the car, running lengthwise with same. On the west side, and near the south end of the caboose, there was an open cupola, with a chair; and a brake immediately south of same in the cupola. The brakeman who handled this brake, being the only brake in the car, when occupying the chair had his face turned to the south, towards the engine. On the opposite or east side of said caboose, going south, there was another cupola, boxed up to some extent, with two seats facing each other therein. The seat along the caboose on east side also passed under said east cupola, but the view of said cupola on east side of car was partially obstructed by its being boxed up. The caboose is a kind of box car, with windows in the sides. There is positive testimony that Abell, the conductor, and Lamb, were occupying seats in the east cupola, in which there was no brake. Abell, the conductor, sat facing south, and opposite him, their knees touching, sat Lamb, a "swing" brakeman,...