Cook v. Missouri Pac. Ry. Co.

• Decision Date: 05 May 1902
• Citation: 68 S.W. 230,94 Mo. App. 417
• Court: Missouri Court of Appeals
• Parties: COOK v. MISSOURI PAC. RY. CO.

68 S.W. 230

94 Mo. App. 417

COOK v. MISSOURI PAC. RY. CO.

Court of Appeals at Kansas City, Missouri.

May 5, 1902.

NEGLIGENCE — LOSS OF EYE — PROXIMATE CAUSE — EVIDENCE — SUFFICIENCY — CONTRIBUTORY NEGLIGENCE — MISLEADING INSTRUCTION.

1. In an action by a railway mail clerk against the railroad company for injuries due to the negligent throwing of a mail sack into plaintiff's face, resulting in the loss of an eye, it appeared that on the day after the accident plaintiff had called on an occulist, who found nothing serious the matter; that 12 days later he came back with a fully-developed inflammation of the optic nerve of the retina. This occulist testified that the condition of the eye might have resulted from the syphilitic condition of plaintiff's system. Two or three witnesses testified that plaintiff had stated he had the syphilis. Before the accident plaintiff had been at Hot Springs, and consulted a physician. Plaintiff testified that before he went to Hot Springs he had had an abrasion or sore on his genital organs, and had been examined for syphilis. The testimony of defendant's experts tended to show that the condition of plaintiff's eye under such circumstances would be more apt to result from syphilis than from a blow, etc. Another occulist testified in rebuttal that he had examined plaintiff at the time, and found no trace of syphilis; that plaintiff had told him that he had been suspected of having the disease. Plaintiff testified that the doctor told him that he did not think he was afflicted with syphilis. Held that, though defendant's demurrer to the evidence was properly overruled, a verdict for $2,500 was so against the preponderance of the testimony as to imply some prejudice, and must be reversed.

2. A charge that "contributory negligence is a defense pleaded by the defendant, and must be proven by the defendant by the greater weight of all the credible evidence in the case," tended to mislead the jury.

Appeal from circuit court, Jackson county; James H. Slover, Judge.

Action by Charles S. Cook against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Action for recovery of damages for personal injuries. The petition alleged that on June 5, 1898, and for a long time prior thereto, he was and had been in the employment of the United States as railway postal clerk on defendant's train running from Kansas City to Joplin, Mo., by way of Pleasant Hill, and that while in the performance of his duty as such postal clerk in receiving the mail one of the servants of defendant handled said mail in such a negligent manner that one of the sacks was thrown into plaintiff's face with such violence as to cause an injury which resulted in the loss of an eye, etc. The answer was a general denial, coupled with a plea of contributory negligence. There was a trial, which resulted in judgment for plaintiff, and defendant appealed.

Elijah Robinson, for appellant. Hollis & Fidler, for respondent.

SMITH, P. J. (after stating the facts).

1. The defendant insists that the trial court erred in denying the demurrer offered by it at the conclusion of the evidence. This contention, we do not think, should be sustained. The plaintiff's own testimony was sufficient — barely so — to establish a prima facie case entitling him to a submission. But, even if this is so, shall the judgment stand? It is somewhat doubtful, under the evidence, whether or not the plaintiff was struck in the eye at all with a mail sack or the end of one; but, if such was the fact, we think it still more doubtful whether or not the injury complained of was the result of that stroke, or whether or not the stroke was the proximate cause of the loss of plaintiff's eye. Assuming that the defendant's baggageman did throw the sack from the truck into the mail car in such a way that it, or the cord used in connection with it, struck the plaintiff in the face or eye, it does not satisfactorily appear from the evidence that from the impact there was any bruise, contusion, or abrasion about the eye, or discoloration of the eyelid, nor any congestion or inflammation of that organ, nor any excretion of the lachrymal or tear gland. Neither the plaintiff's helper on the same mail car nor any of the trainmen seem to have noticed anything of this kind on the day of the alleged injury nor at any day subsequent thereto. It appears that on the next day after that of the accident the plaintiff visited Dr. De Lap, an oculist of Kansas City, and a witness called by plaintiff, who testified that he examined the plaintiff's eye, and "found nothing wrong with it, apparently." He further testified that "there was very slight congestion of the retina or the optic nerve," but so slight that he attached no importance to it. "I dilated the pupil, and told him to come back the next day, and then I made a more thorough examination, and that was when I found the condition I have just related. I did not find inflammation. The second day I thought he had a slight congestion, but it was so slight that I did not attach any importance to it." This witness further testified "that twelve days later on, the plaintiff came back with fully-developed inflammation of the optic nerve or the retina. The optic nerve, where it entered the eye, was then very much swollen and congested, the blood vessels greatly enlarged and tortuous, and a hazy condition of the whole retina." He thought that the condition of the plaintiff's eye might very well have resulted from syphilitic condition of his system. Two or three witnesses testified that the plaintiff had stated to them that he had syphilis, another that he had chancroid, and to still another that he had gonorrhea. It further appeared that prior to the accident plaintiff had visited Hot Springs, Ark., where he consulted a physician, who prescribed certain medicines and baths; but the name of the physician, nor that of the druggist who filled the prescription, he testified he could not recollect. Plaintiff further testified that before he went to Hot Springs he had an abrasion or sore on his genital organs, and had had himself examined for syphilis. Amongst other witnesses called by defendant to testify were three experts, namely, Drs. Thompson, King, and Tyree, who, by reason of their great learning and skill, had become eminent in their profession, the last of whom had been appointed by the court to examine the plaintiff's eye. The first of these experts testified as follows: "Q. If a man were struck in the eyelid with a mail cord, — a knot similar to this one, — and the blow was not sufficiently hard to leave any external evidence of the fact, what would be your opinion as to whether that would result in the loss of the sight of the eye? A. Well, it depends on how hard the blow was, whether it hit the eyeball, whether it might not injure the eye and not leave a mark on the face. But do you mean to say a trifling blow or a severe blow? Q. I have described it as well as I can. I said a blow not sufficiently hard to leave any external evidence of the fact that there had been a blow on the outside of the lid. A. Yes, sir; such...