Bowlin v. Union Pacific Railroad Company

• Decision Date: 20 May 1907
• Parties: CARRIE BOWLIN, by next friend, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

102 S.W. 631

125 Mo.App. 419

CARRIE BOWLIN, by next friend, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 20, 1907

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

N. H Loomis and Douglass & Watson for appellant.

(1) The court erred in not setting aside the verdict because it is against the evidence and the greater weight of evidence. (2) The court erred in not setting aside the verdict because the record shows the verdict is so palpably against all the credible evidence that it shows the jury were actuated by passion and prejudice. (3) The court erred in refusing to give the instruction asked by defendant that the burden of proof was upon the plaintiff to prove defendant was negligent as charged in petition.

Reed Yates, Mastin & Howell for respondent.

(1) The verdict in this case is not against the overwhelming weight of the evidence, as claimed by appellant. If this were so however, there is nothing about the case to indicate that the verdict is the result of passion or prejudice of such character as to warrant the interference of the appellante court. (2) The court did not err in refusing to give defendant's instruction A, because it is not the law that the burden of proof is on the plaintiff to prove the negligence of the defendant in a case of this character. This question is set at rest by numerous Missouri authorities. Turnish v. Railroad, 102 Mo.App. 452; Redmon v. Railroad, 185 Mo. 10; Hipsley v. Railroad, 88 Mo. 348; Dimmitt v. Railroad, 40 Mo.App. 660.

OPINION

JOHNSON, J.

Action by a passenger against a common carrier to recover damages for personal injuries alleged to have been caused by the negligence of the carrier. The judgment was for plaintiff in the sum of fifteen hundred dollars and the cause is here on appeal of defendant.

The act of negligence averred in the petition is "that while said train was being so operated by defendant upon its tracks, near the said city of Junction City, Kansas, the defendant, by its agents, servants and employees in charge thereof, carelessly and negligently operated and ran and operated said train in such manner that the same was wrecked and one of the coaches thereof thrown down an embankment over which defendant's track ran and the car of said train in which this plaintiff was riding was so jarred, jostled and shaken that the plaintiff was thrown from her seat in said car and upon and against other seats thereof and upon the floor of said car and was thereby greatly injured." The answer is a general denial.

First, it is argued by defendant that its request for an instruction in the nature of a demurrer to the evidence should have been given. The evidence of plaintiff discloses this state of facts: On the nineteenth of September, 1904, plaintiff, then sixteen years of age, was a passenger on one of defendant's passenger trains. She had boarded the train at Union, Oregon, and her destination was Kansas City. At the time of her injury, the equipment of the train consisted of a baggage and mail car, three passenger cars, a dining car, and four sleeping cars, the first of which was a tourist car. Plaintiff was seated in one of the rear chairs of the middle passenger coach, which was a chair car. Following, was one of the coaches, the dining car, and the sleeping cars. At a point near Junction City, the dining and sleeping cars were derailed from some cause not shown, while the train was running at a speed variously estimated from twenty to forty miles per hour. The car in which plaintiff was riding did not leave the track. Emergency brakes were applied and the train was quickly brought to a standstill, but not until after the rear sleeper had become detached and rolled down an embankment. The derailment, together with the violent application of the brakes, produced a severe jerking of the chair car and plaintiff thus describes the effect produced on her: "I was sitting on the seat next to the aisle, and the way it was jogging it jerked me forward and then kind of jogged backward and set me flat; then I was there sitting where my feet should be; I was just sitting catty-cornered. When I sat down I was sitting where my feet were . . . When I sat down there, well, it hurt me just like--well, I don't know just exactly how it did hurt; it hurt pretty bad, and then I got sick, I got kind of sick when I got up and felt like I was going to vomit, and I went outside and was standing on the steps, and vomited off the steps." She says she did not think at the time that she had sustained any injuries worthy of mention, and it was not until she arrived at Kansas City that evening that she found she had been seriously hurt. She went to the home of her mother who lives in Kansas City, and that night complained of severe pain and was nervous to the point of being hysterical. The next morning, a physician was called. Plaintiff refused to permit him to examine her then, but on the following day, submitted to an examination and was found to be injured in the manner we shall presently state.

No other witness testified to seeing plaintiff fall from her seat in the car, and defendant introduced a large number of witnesses, many of whom were fellow passengers with plaintiff, who testified that so far as they observed, no passenger in the chair car was injured or unseated by the disturbance occasioned by the derailment and subsequent stop. A little girl who was riding next to plaintiff testified that plaintiff was seated by the window and was not thrown from her seat nor hurt in any manner. Defendant contends that as the testimony of plaintiff is unsupported and is contradicted by so many reputable and disinterested witnesses, it should be regarded as lacking sufficient strength to raise an issue of fact to go to the jury, especially in view of the further fact, practically conceded by plaintiff on cross-examination that she was a prostitute of the lowest type.

The principle followed by us in the case of Lehnick v Railway, 118 App. 611, is invoked as applicable to the facts of the present case. There we held that "where the preponderance of the evidence against the verdict is so strong as to raise a presumption of prejudice, corruption, or gross negligence on the part of the jury, the appellate court has the right to interfere with such verdict." At this term, we had occasion to deal again with this principle (Pickens v. Railway, 125 Mo.App. 669), and held that "where the court finds the evidence supporting the judgment possesses substance, it does not weigh it in the balance with that opposed to it, but accepts the judgment of the triers of fact as a final adjudication of the issues which, under the law, they must decide. But where the supporting evidence lacks value, either because it fails to measure to the standard of the rules of evidence, or is opposed by evidence of such over-whelming strength and verity that it is too weak to raise an issue, the appellate court, as a matter of law, should brush it aside, and, regarding the judgment as the offspring not of a fair and impartial effort on the part...