Schulz v. St. Louis-San Francisco Ry. Co.

Citation4 S.W.2d 762,319 Mo. 8
Decision Date18 February 1928
Docket Number26410
PartiesHattie Schulz v. St. Louis-San Francisco Railway Company, Appellant
CourtUnited States State Supreme Court of Missouri

Motion for Rehearing Denied March 24, 1928.

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

E T. Miller and Ward & Reeves for appellant.

(1) The court erred in overruling the demurrer. (a) A finding that death was the result of bodily injury, effected through accidental means, cannot be reached by an inference based upon an inference, or cannot be based upon mere conjecture. Phillips v. Ins. Co., 231 S.W. 948; Atherton v Ry. Assn., 221 S.W. 756; Swearengen v. Railroad, 221 Mo. 644; Wright v. U. C. T., 188 Mo.App. 563. (b) Where the death, under the evidence, may be due to either of two existing causes, accident or disease, for one only of which the defendant is liable, mere proof by the plaintiff that the one for which the defendant is liable is a possible cause is not sufficient; but before the plaintiff is entitled to have the cause submitted to the jury it is necessary that he go further and show with reasonable certainty that the death was caused by the injury received in the wreck. Young v. Railroad, 113 Mo.App. 636; Warner v. Railroad, 178 Mo. 134; Smart v. Railroad, 91 Mo.App. 586; Dyer v. Sutherland Co., 258 S.W. 50; Purcell v. Shoe Co., 187 Mo. 276; Fuchs v. St. Louis, 133 Mo. 197; Kelly v. Railroad, 141 Mo.App. 497. (2) The court erred in Instruction A, given at the request and on behalf of the plaintiff. The fact that there was a fall of the bridge and a wreck of the train constitutes facts or evidence which tends to establish negligence and from which the jury can infer or find that the defendant was or was not guilty of negligence. But it is not a presumption. It is proof of facts tending to establish negligence, and the jury should not be told that it proves negligence or that it presumes negligence. Bond v. Railroad, 288 S.W. 777; State ex rel. Frisco v. Daues, 290 S.W. 427. Said instruction is misleading to a jury wherein it says, "and before you can deny plaintiff recovery on the ground that the fall of the bridge was not due to some act of negligence," etc. The main defense in this case was that the deceased did not die of the injury. Yet this instruction in that clause, "before you can find for the defendant," would hold out to the ordinary jury that the trial court, thought the plaintiff ought to win, and it is argumentative and suggestive and therefore confusing to the jury, and very prejudicial to the defendant.

T. J. Dolin and Douglass & Inman for respondent.

(1) The evidence of plaintiff that decedent was a passenger on a train that was wrecked by the fall of a bridge; that he sustained a fracture of the skull, was in the hospital eleven weeks; that thereafter he suffered lapse of memory, was forgetful, stuttered, suffered constant and severe headaches; that he could not stand the hot sun, was unable to work in his garden; that his system was weak and devitalized; that these conditions continued and got worse to his death; that during his last days and up to his death he complained of severe headaches and would hold his hand on his head where injured; that he went into convulsions before he died; during these times he would hold his head, made a case for the jury. 1 Sutherland on Damages, sec. 36, p. 138; Sharp v. Railway Co., 213 Mo. 517; MacDonald v. Railroad, 219 Mo. 468; Sorenson v. Railroad, 36 F. 166; Seckinger v. Mfg. Co., 129 Mo. 590; De Maet v. Moving Co., 231 Mo. 615; McGinnis v. Printing Co., 122 Mo.App. 227; Hartzler v. Railroad, 140 Mo.App. 665; Railroad v. Buck, 96 Ind. 346; Quackinbush v. Railroad, 73 Iowa 458; Beauchamp v. Mining Co., 50 Mich. 163; Kuenzel v. St. Louis, 278 Mo. 277. (2) Although "it is true no one could have foreseen that the injury received by deceased would result in pneumonia (meningitis) and death, it does not follow that defendant would not be liable. Hartzler v. Railroad, 140 Mo.App. 665. (3) "Causal connection, like negligence, is usually a matter of inference from other facts, and is a question for the jury." Smith v. Chemical Works, 251 S.W. 155; Eichholz v. Poe, 217 S.W. 282; Seckinger v. Mfg. Co., 129 Mo. 590; Sharp v. Railroad, 213 Mo. 517; MacDonald v. Railroad, 219 Mo. 468; Poumeroule v. Cable Co., 167 Mo.App. 533. (4) Instruction 1 properly declares the law and is approved in the following cases: Whitlow v. Railroad, 282 S.W. 525; Bond v. Railroad, 288 S.W. 777; State ex rel. v. Daues, 290 S.W. 425.

Higbee, C. Davis and Henwood, CC., concur.

OPINION

Higbee, C.

This is an action by the plaintiff, the widow of August Schulz, based on Section 4217, Revised Statutes 1919, for the penalty provided by the statute for the death of her husband, resulting from injuries suffered by him while a passenger on defendant's railroad on September 1, 1922, Schulz died on May 25, 1923. The petition was filed on October 29, 1923. A change of venue was granted to the Circuit Court of Cape Girardeau County, where plaintiff had a verdict and judgment for $ 10,000, and the defendant appealed.

The petition alleges, inter alia, that August Schulz, plaintiff's husband, was a passenger for hire on one of defendant's southbound trains on September 1, 1922; that defendant maintained a bridge at a point known as Starland, in Perry County, Missouri, over which it ran its trains; that said bridge gave way while the train on which Schulz was a passenger was passing over it and he sustained injuries from which he died on May 25, 1923; that he left plaintiff, his widow, and their infant daughter, Silvian, aged three years, surviving him, who were dependent on deceased for their support, and this suit was instituted within six months after his death. The amended answer reads:

"Defendant for amended answer to the petition herein denies each and every allegation therein contained.

"Admits that on the 1st day of September, 1922, plaintiff's husband, August Schulz, was a passenger on defendant's southbound passenger train out of St. Louis, and admits that when said train reached a wooden bridge near Starland the said bridge gave way and fell under a portion of said train, thereby derailing it.

"Admits that said August Schulz was injured in said derailment, but alleges that said injuries consisted of a lacerated scalp, linear fracture of the right parietal bone about one and one-half inches long, laceration of the middle finger, lacerations of the face, contusions to the right side of the chest.

"Defendant denies that any of said injuries were fatal, or that any or all of them or any injury August Schulz received in said wreck caused his death, but alleges that his death was caused by influenza complicated with meningitis.

"Denies that the plaintiff is entitled to recover the sum of ten thousand dollars or any sum from this defendant on account of the death of the said August Schulz."

There is substantial evidence for the plaintiff tending to show that Schulz was a passenger on one of defendant's southbound trains which left St. Louis about nine P. M., on August 31, 1922; that the train was wrecked on the following morning by the fall of a bridge over Starland Creek; that he sustained several injuries, including a fracture of the skull; that he was taken from the wreck to the defendant's hospital in St. Louis where, he remained under treatment until November 18th following the accident, when he was discharged and returned to his home in Perry County, where he lived with his wife and their little child, Silvian, who was then three years old.

Mr. Schulz was pastor in charge of a small Lutheran church in Perry County, living with his family in a parsonage furnished him by his congregation rent free, with fuel. He was a native of Poland, and spoke also German, Russian, Spanish and English. In addition to his pastoral duties he taught school in the church building, which was attended by the children of his parishoners. His annual income was about $ 1000. He was thirty-one years old and prior to his injuries enjoyed good health.

After his return from the hospital he took up his work, but constantly suffered much pain in his head where the skull had been fractured. His memory was impaired, he stuttered, he could not commit his sermons, but had to read them or frequently refer to his notes. His system was weakened, his vitality impaired, and at times when preaching he seemed to be about to faint. This condition was progressive. He could not work in his garden on account of the heat of the sun. In May following his return from the hospital, Mrs. Schulz was taken ill with influenza and he assisted in waiting on her. After three or four weeks he broke down and took to his bed, dying on May 25, 1923.

Several members of Mr. Schulz's congregation testified. Their testimony was substantially the same. One of them, Pete Eckert, testified as follows: I visited his home at times; I remember when he died; I saw him while he was sick. I saw him two days before he died; he was in bed at his home at that time; he was conscious when I saw him, and he knew me when I came in. He seemed to be suffering with pains in his head. He was complaining of that sore spot he had on his head and said that bothered him so much; he had fever. After he came home from the hospital in St. Louis I saw him generally every Sunday, and sometimes once or twice a week, that is, between Sundays. I attended his church. After this accident, it seemed like, in his sermons very often it seemed as if he would faint and he would stutter, and his sermons, he would always have to have copies before him and some times he would have to read part of it; it appeared he would stand there for a minute maybe and appeared like he was going to faint most...

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