Tibby v. Missouri Pacific Ry. Co.

• Citation: 82 Mo. 292
• Parties: TIBBY v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 30 April 1884
• Court: Missouri Supreme Court

82 Mo. 292

TIBBY

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

E. A. Andrews and Robert Adams for appellant.

It was error to permit the proof of the custom of stockmen to ride on the top of the cars. Such custom was not alleged in the petition, nor brought home to the knowledge of the deceased. The direction of the conductor to leave the caboose and go forward and get into a box car, was not the proximate cause of the injury. “The spontaneous action of an independent will intervened between the expulsion from the car and the injury.” Henry v. Railroad Co., 76 Mo. 294; Wharton on Neg., 200, §§ 134, 138; Haley v. Railroad Co., 21 Ia. 15; Forsyth v. Railroad Co., 103 Mass. 510; Frost v. Railroad Co., 10 Allen 387; Penn. R. R. Co. v. Zebe,33 Pa. St. 318; Bancroft v. Railroad Co., 97 Mass. 275; L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 529; B.& P. R. R. Co. v. Jones, 95 U. S. 439; also Nelson v. Railroad Co., 68 Mo. 593. The court erred in overruling defendant's demurrer at the close of plaintiff's case. It was error for the court to refuse to admit the stock contract offered in evidence by defendant, and which entitled deceased to ride on defendant's trains.

Britton A. Hill, T. J. Delaney and A. R. Taylor for respondent.

This action is based upon the negligence of the carrier, and this cannot be stipulated against. Graham v. Railroad Co., 66 Mo. 536; Railroad v. Lockwood, 17 Wallace, 357; Railroad v. Stevens, 95 U. S. 655; Sturgeon v. Railroad Co., 65 Mo. 569; Clark v. Railroad Co., 64 Mo. 447. This is the settled law of this State. Hence, the contract with Tibby was properly excluded by the court. It was entirely correct to show that the manner in which the defendant carried stockmen as passengers from Twenty-first street to the end of the journey, was on top of box cars, in order to show that Tibby was properly on top of the box car when knocked therefrom by defendant's negligence and killed. Hence, the admission of the testimony of the witnesses to show this fact was clearly right. The instruction given by the court, required the jury to find that Tibby's death was occasioned by the negligence of defendant's servants whilst managing its trains, before they could render a verdict against defendant. The instruction put the case to the jury upon the facts, and is beyond criticism. The point made by appellant, that the direction of the conductor to leave the caboose, and go forward, to get on or in a box car, was not the proximate cause of the injury, is too obscure to be understood. Nobody ever contended that such direction was the proximate cause. The proximate cause of the injury was the reckless negligence of defendant's servants, in causing the different portions of the train to be struck together with such force as to cause the stock passenger to be knocked off the train.

MARTIN, C.

This was an action under the statute to recover damages for an injury resulting in the death of plaintiff's husband. It is alleged in the petition that the defendant accepted Matthew Tibby, husband of plaintiff, as a passenger on its train, laden with live stock, and undertook to carry him safely from Sedalia to St. Louis at its union depot; that in pursuance of such undertaking defendant carried said Matthew as far as Twenty-first street in St. Louis where defendant by its servants directed said Matthew to leave the caboose car in which he had ridden as passenger thus far on his journey, and to get upon the top of a car of said train to be there carried to the end of his said journey; that in pursuance of said direction said Matthew did get upon the top of a car of said train to be there carried to the end of his journey; that while said Matthew was on the top of said car the agents and servants of defendant in charge of its said train did carelessly and recklessly cause said train, while it was moving eastward, to be suddenly and violently slacked up, whereby said Matthew, without any fault or negligence on his part, was violently thrown from said car in front of said train where the wheels of the cars passed over him, inflicting such injuries upon him that death resulted therefrom.

The defendant answered by denying the facts alleged in the petition and charging contributory negligence on the part of plaintiff. The trial resulted in a verdict of $5,000 for plaintiff, from which the defendant has appealed, accepting an affirmance pro forma in the St. Louis court of appeals.

It appears from the evidence that Matthew Tibby was the husband of plaintiff and that he was accepted at Sedalia as a person in charge of stock on board of the train to be transported to St. Louis at its union depot. The accident which resulted in his death is graphically stated in the evidence of Peter J. Hudson, a fellow traveler, who was an eye-witness, as follows:

“I reside in Neosho county, Kansas; I was acquainted with Matthew Tibby in his lifetime; I knew him on or about the 16th day of June, 1879; I was with him in St. Louis, Missouri, on Twenty-first street at that time, the 16th day of June, 1879; we started from here, from Osage, Missouri, on the night of the 14th day of June, 1879; we started from depot with stock; we reached St. Louis June 16th, 1879, about 5 o'clock in the morning, met after 5 o'clock in the morning. The weather was rather misty and foggy on that morning; it was just getting daylight when we arrived in St. Louis; it was not daylight yet, not light as it is now; we were on the Missouri Pacific Railroad. When we got at Twenty-first street in St. Louis, the train stopped there; the conductor said that was as far as the caboose went, that we would have to go through the tunnel in a box car, up next to the engine. There was some four or five of us in the caboose at the time; Mr. Tibby, Mr. Welsh and myself got out of the caboose and started for the front of the train; they went out on the left-hand side; they were rather ahead of me; I was on the opposite side of the train from them, going along looking at the hogs I had charge of, trying to see how many there were dead; and when I got to the front end of the train they were on top of the front stock car and motioned to me to come up. They said there would be a box car in there to go through the tunnel in. When I got up on top of the car I went up to where they were standing; I sat down about four or five feet from the front end of the car; had not been sitting there but about a minute and the engine came in from the rear and struck the rear end of the train and gave a very hard jar. Mr. Tibby was in the act of sitting down when the jar came. He, Tibby, standing to my right at that time, and Mr. Welsh to my left, one on each side of the foot board on the top of the car; I was sitting on this board. When the jar came it threw me in the same direction it did Mr. Tibby and Mr. Welsh; we all went together when the jar came, and Mr. Tibby went so far he could not catch his balance; I expected to see Mr. Welsh go at the same time, but he did not; I think as Mr. Tibby saw he had lost his balance he went to jump; he lit, I suppose, about four feet ahead of the car. Mr. Welsh, who was standing up hallooed at him to get out of there quick. He, Welsh, turned around and said, my God; and by the time he said this the wheels were going over Mr. Tibby. I got down off the cars; by the time I got around to where Mr. Tibby was, there was two or three men there to take Mr. Tibby out; they had to start the train backward in order to get his body out, as it was under the truck, and they could not get it out without moving the...