Hedrick v. Missouri Pacific Railway Co.
| Decision Date | 29 March 1906 |
| Citation | 93 S.W. 268,195 Mo. 104 |
| Parties | HEDRICK v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court. -- Hon. W. L. Jarrott, Judge.
Reversed.
R. T Railey for appellant.
(1) The undisputed facts failed to show any negligence on the part of either defendant or its servants. Defendant's demurrer to the evidence should therefore have been sustained. Wait v. Railroad, 165 Mo. 620; Bartley v. Railroad, 148 Mo. 141; Hite v. Railroad, 130 Mo. 141; Portuchek v. Railroad, 101 Mo.App. 52; Erwin v Railroad, 94 Mo.App. 291; Saxton v. Railroad, 98 Mo.App. 503; Young v. Railroad, 93 Mo.App. 274; Shields v. Railroad, 87 Mo.App. 645; Guffey v Railroad, 53 Mo.App. 468; Railroad v. Morris, 62 S.W. 1012. The plaintiff, as well as the trial court, seemed to be of the impression that the doctrine of res ipsa loquitur should be applied to this case. The rule relied on seems to be confined to that class of cases where a wreck occurred, or where the train jumped the track, or where something else transpired, which did not occur in the ordinary and usual management of ordinary freight trains. But in this case not a syllable of evidence appears which in the least indicates that the engineer was not skillful and careful in the management of the train. Nothing was wrong with either the roadbed or rolling-stock. In stopping such a train on a grade like this, from the very necessity of the case some slack would occur -- of which fact the court would take judicial notice -- and a sudden stop would be the result while the engine was stationary. On the facts in this case, it is submitted that if plaintiff had been on a regular passenger train -- instead of a freight train with 20 to 25 loaded cars, stopping on a grade under the circumstances herein -- he would have signally failed to make out a case of negligence in respect to the management of the train. We have been unable to find any case, reported in any law book, where the plaintiff, under the circumstances detailed herein, has been permitted to recover damages. The trial court should have sustained our demurrer to the evidence, and having failed to do so, it is insisted that this court should reverse the cause, without remanding same. (2) There is no charge in petition to the effect that the engineer or any of the train crew were either incompetent or careless. Omnia praesumuntur rite et solemniter esse acta. Co. Litt., 6 b 332; 1 Phil. Ev. (Con. & Hill's Notes), p. 604, sec. 10; State ex rel. v. Bank, 120 Mo. 169; Yarnell v. Railroad, 113 Mo. 579; State ex rel. v. Williams, 99 Mo. 302; Mathias v. O'Neil, 94 Mo. 528; Hammond v. Gordon, 93 Mo. 226; Lenox v. Harrison, 88 Mo. 491; Bush v. White, 85 Mo. 356; Henry v. Dulle, 74 Mo. 451; Long v. J. M. & S. Co., 68 Mo. 431. Plaintiff in his testimony complains of but one jerk or jump. Plaintiff and his two witnesses said the stop was sudden, and unusual for a freight train to make, but this was simply an expression of opinion, and not a statement of any facts as to what the engineer was actually doing at the time. Bartlett v. O'Donoghue, 72 Mo. 564; Nugent v. Milling Co., 131 Mo. 252; Ferguson v. Davidson, 147 Mo. 668; Epperson v. P. T. C. Co., 155 Mo. 383; Wilson v. Jackson, 167 Mo. 155; Rice v. Smith, 171 Mo. 335; Koons v. Railroad, 77 S.W. 761; State v. Kaufman, 45 Mo.App. 659. (3) Plaintiff was riding on a stock pass, at time of alleged accident, and for a valuable consideration agreed to all the terms and conditions of same. Plaintiff was therefore bound by the terms of said contract and agreed to assume all risk of personal injury whatever, in passing along the caboose, while it was in motion, and as shown by his testimony at time of alleged accident. Kellerman v. Railroad, 136 Mo. 189; Catterlin v. Lusk, 98 Mo.App. 187; McNealy v. Baldridge, 106 Mo.App. 18; Bowring v. Railroad, 90 Mo.App. 330; Wyrick v. Railroad, 74 Mo.App. 412. (4) Plaintiff was on his feet and moving toward the rear of caboose, while the latter was in motion. Under his stock contract he assumed all risk of injury while occupying this position. He knew it was more dangerous for him to occupy this position than if he had been seated. No signal had been given in regard to stopping. No trainman had called the station, invited plaintiff to alight, or had any conversation with him whatever. He got up from his seat of his own motion, while the train was moving and with full notice of the extra hazard which he was thus encountering. On his own admissions as well as on the undisputed facts, his own negligence not only contributed to, but directly caused the injuries -- if any -- which he sustained by the sudden stop or jerk complained of. Smotherman v. Railroad, 29 Mo.App. 266; Tuley v. Railroad, 41 Mo.App. 432; Harris v. Railroad, 89 Mo. 235; Carroll v. Railroad, 107 Mo. 653; Townsend v. Railroad, 61 S.W. 56.
S. G. Kelly and O. L. Houts for respondent.
(1) Plaintiff's drover's pass made him a passenger on defendant's freight train and it became the duty of defendant to use the utmost skill and care which prudent men would use and exercise in like business and under like circumstances to transport him to St. Louis, the place of his destination, and to stop its train a sufficient length of time to enable plaintiff to get off in safety at the intermediate station of LaMonte on defendant's line of railway where plaintiff was required to stop to assist in loading a car load of hogs to be taken in the same train. The undisputed evidence shows that defendant caused its train to be slowed up at LaMonte until it was moving very slowly and until a number of the traincrew had got off, for the purpose of stopping and of allowing plaintiff, the only passenger, to get off; that in the presence of one of defendant's brakemen, in the caboose of the train, and without any warning or direction from the brakeman to wait longer, plaintiff, who was then seated in the caboose, arose and walked toward the rear door for the purpose of getting off; and that before plaintiff had time to get off, and without any warning to him, defendant jerked or knocked or bumped with great, unusual, unnecessary, and extraordinary force, said train and caboose, and thereby injured him. Upon this evidence the jury, under proper instructions, found that defendant's employees jerked or knocked or bumped with unusual and unnecessary and extraordinary force, the train and caboose, and that plaintiff was thereby injured while in the exercise of ordinary care upon his part, and rendered a verdict for plaintiff. The verdict was right. The act of defendant amounted to gross negligence in the management of its train, and its demurrer to the evidence was properly overruled. Carroll v. Railroad, 88 Mo. 239; Fullerton v. Railroad, 84 Mo.App. 498; Harris v. Railroad, 89 Mo. 233; Coudy v. Railroad, 85 Mo. 79; Wagoner v. Railroad, 97 Mo. 512; McGee v. Railroad, 92 Mo. 208; Whitehead v. Railroad, 99 Mo. 363; Jones v. Railroad, 31 Mo.App. 614; Richmond v. Railroad, 49 Mo.App. 104; Duncan v. Railroad, 48 Mo.App. 659; Railroad v. Horst, 93 U.S. 291. (2) There was no evidence that plaintiff was guilty of contributory negligence. Under the undisputed evidence, at the time plaintiff was injured he was in the caboose where he had a right to be, doing what he had a right to do, moving to the rear of the caboose for the purpose of getting off after the train had been slowed up by defendant, for the purpose of stopping at the station, and in order that plaintiff might get off. Fullerton v. Railroad, 84 Mo.App. 498; Harris v. Railroad, 89 Mo. 233; Coudy v. Railroad, 85 Mo. 79; Wagoner v. Railroad, 97 Mo. 512; McGee v. Railroad, 92 Mo. 208; Whitehead v. Railroad, 99 Mo. 263; Jones v. Railroad, 31 Mo.App. 614; Richmond v. Railroad, 49 Mo.App. 104; Duncan v. Railroad, 48 Mo.App. 659; Railroad v. Horst, 93 U.S. 291; State to use v. King, 44 Mo. 238; Buck v. Railroad, 108 Mo. 179; Blanton v. Dold, 109 Mo. 64; Hickman v. Link, 116 Mo. 123; Hoepper v. Southern Hotel Co., 142 Mo. 378; Impcamp v. Railroad, 108 Mo.App. 660; Kaiser v. Railroad, 108 Mo.App. 712; McAllister v. Barnes, 35 Mo.App. 674. (3) The contract set out in the stock pass upon which plaintiff was riding had nothing to do with the case further than to show a consideration paid to the company for his transportation; plaintiff was not, therefore, by anything in the contract, precluded from recovering and the instructions based upon that contract were properly refused. Carroll v. Railroad, 88 Mo. 244; Settle v. Railroad, 127 Mo. 343; Blanton v. Dold, 109 Mo. 75; Meyers v. Railroad, 59 Mo. 230; Railroad v. Railroad, 78 Mo.App. 254.
This action was commenced in the circuit court of Johnson county on June 30, 1900, and defendant was duly served with process on that date. At the November term, 1900, the plaintiff filed an amended petition which is in substance as follows: That the defendant is a railroad corporation, operating a line of railway from the town of Knob Noster in Johnson county to the city of St. Louis, and was on the 22nd of January, 1900, a common carrier of passengers for hire, between the points above named, and on that date, for a valuable consideration received by it, received plaintiff into one of its said cars to-wit, a caboose, in a freight train called a stock train, and undertook to carry him safely from Knob Noster to St. Louis. It is then alleged "That defendant disregarded its duty to so carry plaintiff, and by its agents, servants and employees at or near the town of LaMonte, while plaintiff was in said caboose and moving toward the rear end thereof and while said train and car were moving slowly, negligently and unskillfully mismanaged and operated...
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