Moorman v. The Atchison, Topeka & Santa Fe Railway Company
Decision Date | 15 February 1904 |
Citation | 78 S.W. 1089,105 Mo.App. 711 |
Parties | L. A. MOORMAN, Respondent, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant |
Court | Kansas 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.
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,
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:
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