Bussell v. Quincy, O. & K. C. R. Co.

• Decision Date: 20 May 1907
• Citation: 125 Mo. App. 441,102 S.W. 613
• Parties: BUSSELL v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Court of Appeals

102 S.W. 613

125 Mo. A. 441

BUSSELL v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

May 20, 1907.

1. CARRIERS—INJURIES TO PASSENGERS—QUESTION FOR JURY.

Where, in an action for injuries to a passenger on a freight train, the manner of injury, while not what might have been expected, was not incredible, it was a question for the jury.

2. SAME — PASSENGER ON FREIGHT TRAIN — DUTY OF CARRIER.

Where a railroad undertook for hire to carry a person as a passenger on a freight train, it was required to use the same degree of care as was required in the operation of its regular passenger trains; the passenger submitting himself to the inconvenience and danger necessarily attending that mode of conveyance.

3. SAME—BURDEN OF PROOF.

In an action for injuries to a passenger on a freight train, where it was proved that the injury was caused by the sudden and violent stopping of the train, a prima facie case was made out against the carrier which cast upon it the burden to show that the accident was not the result of a want of care and skill which the law imposes upon a common carrier.

4. APPEAL — INSTRUCTIONS — ENLARGING THE ISSUES—HARMLESS ERROR.

In an action for personal injuries, one paragraph of the petition alleged that the plaintiff was thrown from his seat and his ribs broken. In other parts of the petition the allegation was that one of his ribs was broken. Held, that an instruction submitting to the jury whether one or more of his ribs were broken was not prejudicial, as enlarging the issues, where the plaintiff was allowed to testify, without objection, that his ribs were broken.

5. SAME—MISCONDUCT AFFECTING JURY.

A verdict should not be set aside because of certain memoranda inadvertently placed on the back of an instruction by an attorney, where most of the memoranda were meaningless, and none of them calculated to have any effect upon the jury.

6. PLEADING—ELECTION BETWEEN COUNTS OF PETITION.

When the same cause of action is alleged in two counts of a petition in different terms, the plaintiff is not required to make an election upon which count he will rely.

Appeal from Circuit Court, Grundy County; G. W. Wanamaker, Judge.

Action by Samuel R. Bussell against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. G. Trimble and Hall & Hall, for appellant. E. M. Harber and A. G. Knight, for respondent.

BROADDUS, P. J.

This is a suit for damages for injuries alleged to have been received by plaintiff while a passenger on one of defendant's freight trains. On the 5th of March, 1905, the plaintiff boarded defendant's freight train at the town of Gilman for passage to Trenton, Mo. He had intended to take passage on defendant's passenger train, but arrived at the station too late to do so. He paid the usual fare between the points of passage. Plaintiff's evidence tends to show that when the train arrived at Parkington, an intermediate station, he was injured by being thrown from his seat against a desk in the car, by the sudden and violent stoppage of the train. The evidence tends to show that the sudden and violent stoppage of the train was unusual and unnecessary. The evidence of the defendant was that the train did not stop at Parkington, but was only checked in its speed, which was accomplished in the usual and necessary manner, and without any undue violence or suddenness. The plaintiff had been a traveling salesman, had ridden on freight trains, and was familiar with the methods used in stopping them and checking their speed, and the jolts and concussions resulting from such operations. It was shown that it was against the printed orders and rules of the company for passengers to ride on the train in question, but there was evidence tending to show that, both before and after the promulgation of said orders and rules, persons were permitted by the conductors to take passage on it, on the payment of the usual fare.

Much of defendant's contention arises over disputed facts. In reference to such matters, we will say, at the outset, as the appellate courts of the state have said so often, apparently in vain, that it is not the function of an appellate court to pass upon the preponderance of the weight of the evidence. We will therefore, for the purposes of the case, assume that plaintiff was familiar with the usual results accompanying the stopping or checking of a freight train; that the train in question did stop at Parkington; that defendant's agents and operators in charge stopped the train at Parkington in an unusually and unnecessarily violent manner; that plaintiff was injured thereby; and that he paid to the conductor the regular fare for his passage. We will examine, however, the most strenuous contention of defendant, that the physical facts demonstrate that plaintiff could not have been injured as he claims he was. He testified that he was sitting on a seat that extended lengthwise of the car from four to six feet from a desk; that, when the train came to a stop, the jar threw him against the desk; and that he threw up his arms to prevent striking it. He said that he was sitting in the ordinary position, that in such position the desk would strike him near the pit of the arm, that he was about five feet and a half tall, and that his injury was about eight inches below his armpit. The evidence of defendant was that the bench on which plaintiff was sitting was, including the cushion, 21 inches high, and that the distance between the top of the cushion and the lower edge of the desk was 8 inches, and that the top of the desk was 35 inches above the top of the floor. The conclusion defendant draws from these facts is that plaintiff could not have been projected by the force of the shock from 4 to 6 feet, and have struck the desk 8 inches under his armpit; that such would be an impossible result; that, in order for this to be true, his progress must have been upward, which was an impossibility. On the contrary, it is claimed, and correctly, that the tendency under the force of gravitation would have been to carry him downward, unless the force had been so great that he was thrown upward and descended upon the desk. But defendant's theory has its weakness, like most others of the kind. There is nothing in the evidence to show that the force of the concussion lifted plaintiff bodily from the seat and projected him against the desk, and, as it was shown that the ends of the cars were not injured, the inference is that the shock of the concussion was not so great as to produce such a result; but we can infer that the shock was so great as to throw him towards the desk without lifting him from the seat, and that in throwing up his arm he elevated his body, and was struck under and near his armpit as he stated. Although the manner of plaintiff's injury was not what might have been expected, yet it was not incredible, and was therefore...