Moorman v. The Atchison, Topeka & Santa Fe Railway Company

Decision Date15 February 1904
Citation78 S.W. 1089,105 Mo.App. 711
PartiesL. A. MOORMAN, Respondent, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
CourtKansas Court of Appeals

Appeal from Linn Circuit Court.--Hon. Jno. P. Butler, Judge.

Judgment affirmed.

Gardiner Lathrop, Samuel W. Moore, T. P. Burns and J. P. Gilmore for appellant.

(1) The alleged movement of the car claimed by plaintiff to have caused the accident resulting in his injury was necessary and incident to the usual, ordinary and proper operation and management of defendant's train, and plaintiff can not therefore, recover on account thereof. 4 Elliott on Railroads, 2476, sec. 1589; Fetter on Carriers, sec. 81; Saxton v. Railway, 72 S.W. 717; Wait v Railway, 165 Mo. 612; Bartley v. Railway, 148 Mo. 124; Hite v. Railway, 130 Mo. 132; Pryor v Railway, 85 Mo.App. 367; Guffey v. Railway, 53 Mo.App. 462; Portuchek v. Railroad, 74 S.W. 368; Erwin v. Railway, 94 Mo.App. 289; Olds v. Railroad, 172 Mass. 73; Heyward v. Railroad, 169 Mass. 466; Stewart v. Railroad, 146 Mass. 605; Choate v. Railway, 90 Tex. 82; Railroad v. Morris (Ky.), 62 S.W. 1012; Saunders v. Railway, 6 S. Dak. 40; Herstine v. Railroad, 151 Pa. St. 244; Stager v. Railway, 119 Pa. St. 270; Porter v. Railway, 80 Mich. 156; DeSoucey v. Railway, 15 N.Y.S. 108; Black v. Railroad, 2 App.Div. (N. Y.) 387; Bradley v. Railroad, 90 Hun 416; Cassidy v. Railroad, 29 N.Y.S. 724; Railroad v. Vinson (Ky.), 74 S.W. 671. (2) Defendant was pursuing its usual and ordinary course in the operation and management of its train at the time of the accident, which was a proper course. No ordinarily prudent man would or could have foreseen the danger or position in which plaintiff placed himself, and the happening of the injury, therefore, was a mere accident, for which defendant can not be held liable. Saxton v. Railway, 72 S.W. 717; Young v. Railway, 93 Mo.App. 267; Holt v. Railway, 84 Mo.App. 443; Hysell v. Swift, 78 Mo.App. 39; Guffey v. Railway, 53 Mo.App. 462; Brewing Assn. v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 720; and cases cited. (3) Plaintiff was guilty of contributory negligence and is not, therefore, entitled to recover. Erwin v. Railway, 94 Mo.App. 289; Railway v. Overall, 82 Tex. 247; Guthman v. Railway, 53 N.Y.S. 139; Harrison v. Railway, 89 Mo. 236; Ashbrook v. Railway, 18 Mo.App. 290; cases cited under point 1.

West & Bresnehen for respondent.

(1) The sudden movement of a passenger train, made without warning to passengers, when they are alighting, is negligence. Sauter v. Railroad, 66 N.Y. 50; Keating v. Railroad, 49 N.Y. 673; Railroad v. Revalee, 1 Am. Neg. Rep. (Ind.) 427; Distler v. Railroad, 151 N.Y. 424; Railway v. Rowland, 1 Am. Neg. Rep. (Tex.) 363; Railroad v. Moore, 6 Am. Neg. Rep. (Ga.) 451; Devine v. Railroad, 1 Am. Neg. Rep. (Iowa) 41; Appleby v. Railroad, 9 Am. Neg. Rep. 582; Railway v. Elliott, 61 S.W. 726; 3 Thompson on Negligence, secs. 3002-3032. (2) The above cited cases are sufficient to show the general doctrine in cases like the case at bar. The appellate courts of this State are in line with the general doctrine as above stated. Madden v. Railway, 50 Mo.App. 666; Barth v. Railway, 142 Mo. 535; Smith v. Railway, 108 Mo. 243; Leslie v. Railway, 88 Mo. 50; Straus v. Railroad, 75 Mo. 185; Swigert v. Railroad, 75 Mo. 475; Clotworthy v. Railroad, 80 Mo. 220; Bucher v. Railroad, 98 N. Y. cited with approval in Fulks v. Railway, 111 Mo. 335; Condy v. Railway, 13 Mo.App. 587. (3) Appellant was not pursuing its usual and ordinary course in the operation and management of its train, at the time plaintiff was injured, but an unusual, negligent and careless course. The sudden starting of a passenger train without warning, while passengers are alighting, and before they have had sufficient time to get off, is an act of negligence likely to result in injury to passengers. The fact that the employees of the carrier can not anticipate the particular character of the injury which may be sustained, will not relieve the carrier from liability. Sauter v. Railroad, 66 N.Y. 50; Keating v. Railroad, 49 N.Y. 673; Railroad v. Revalee, 1 Am. Neg. Rep. 427; Distler v. Railroad, 151 N.Y. 424; Railway v. Rowland, 1 Am. Neg. Rep. 363; Barth v. Railway, 142 Mo. 535; Smith v. Railway, 108 Mo. 243; Leslie v. Railway, 88 Mo. 185; Swigert v. Railroad, 75 Mo. 475; Clotworthy v. Railroad, 80 Mo. 220; Railroad v. Moore, 6 Am. Neg. Rep. 451; Devine v. Railroad, 1 Am. Neg. Rep. (Iowa) 41; Madden v. Railway, 50 Mo.App. 666; Condy v. Railway, 13 Mo.App. 587.

OPINION

SMITH, P. J.

Action to recover damages for personal injuries. The defendant's railway line extends from Marceline to Bucklin, over which it runs and operates its various kinds of trains. The plaintiff, desiring to go from the former to the latter place, for that purpose entered a car of one of the defendant's passenger trains at such former place where he was accepted as a passenger. The petition alleges, "that after sad train upon which plaintiff was so being carried as aforesaid had reached the said town of Bucklin and when said train was within a short distance of defendant's said depot at Bucklin, and while said train was still in motion, and while said train was being slowed up for the purpose of stopping at defendant's said depot at Bucklin, the defendant's servants and agents, then and there in charge and control of said train, negligently and carelessly called said Bucklin station, and so then and there negligently and carelessly invited and directed the plaintiff (and the other passengers on said train) to prepare and make ready to get off of said train at its Bucklin depot. Plaintiff further states that after the defendant's said servants and agents so in charge and control of said train had so negligently and carelessly called said Bucklin station as aforesaid, and had so negligently and carelessly invited and directed the plaintiff (and the other passengers on said train) to prepare and make ready to get off of said train at its Bucklin depot, and before said train had come to a full stop, and while it was being run at a very low rate of speed, the plaintiff in the exercise of due care and caution on his part, and as he was so negligently and carelessly directed by defendant's servants and agents so in charge of said train, prepared and made ready to get off of said train at the said Bucklin depot, by raising from his seat in said car and by stepping into the aisle between the rows of seats in said car. Plaintiff further states that while plaintiff was so standing in the said aisle of the said car, so prepared and ready to get off of said car and while plaintiff was in the exercise of due care and caution on his part, and after said train had come to a full stop, or had almost and about come to a full stop, at or near the depot platform at said Bucklin depot, and before the plaintiff had had a reasonable or sufficient time to get off of said train, the defendant's servants and agents so in charge of said train suddenly, negligently and carelessly and without any warning or notice to the plaintiff caused said train to be suddenly, rapidly and violently started and jerked forward, whereby plaintiff was thrown with great force and violence upon and against the small end or point of the handle of an umbrella, which umbrella plaintiff then and there held in his hand and whereby the other or larger end of said umbrella was thrust against one of the seats of said car, and whereby plaintiff's body was thrown with such great force and violence against the small end or point of said umbrella handle as to cause and produce a rupture and hernia of the plaintiff on the right side of plaintiff's abdomen in the inguinal region."

The answer was a general denial and the plea of contributory negligence. There was a trial resulting in judgment for plaintiff and defendant appealed.

At the close of the plaintiff's evidence and at the conclusion of all the evidence, the defendant requested an instruction in the nature of a demurrer thereto, which was by the court denied. The vital question brought before us by the appeal is whether or not on the evidence adduced the plaintiff was entitled to a submission of the case to the jury.

It is the well-settled law of this State that a demurrer to the evidence admits every fact which the jury might infer if it were before them, and if, taken as true, it makes out a case of actionable negligence the plaintiff is entitled to go to the jury notwithstanding the countervailing evidence of defendant. Barth v. Railway, 142 Mo. 535; Rem v. Railway, 100 Mo. 228; Franke v. St. Louis, 110 Mo. 516, 19 S.W. 938.

The plaintiff's testimony was to the effect that after the purchase of his ticket he entered defendant's train and occupied a seat in the rear end of the second coach from the engine; that as the train approached Bucklin one of defendant's trainmen called out "Bucklin!" Just what occurred next after this will be best understood by reference to the following extracts taken from the plaintiff's testimony:

"Q. After the station was called, state whether or not the train slowed up? A. The train slowed up when it approached the station. Q. Tell the jury what, if anything, occurred after the train began to slow up? A. Well, the train began slowing up and I thought the train had stopped. My impression is that it stopped still and at that time I arose from my seat; and the gentleman sitting by me arose from his seat, and picked up, I think he had baggage with him, and stepped in the aisle and I arose and picked up my suit case and was standing just at the end of the seat in front of the one in which I sat. Q. State whether or not those two seats had been turned toward each other? A. They were. They were reversed so the two...

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