Bussell v. Quincy, Omaha & Kansas City Railroad Company
| Decision Date | 20 May 1907 |
| Citation | 102 S.W. 613,125 Mo.App. 441 |
| Parties | SAMUEL R. BUSSELL, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. George W. Wannemaker, Judge.
AFFIRMED.
Cause affirmed.
J. G Trimble and Hall & Hall for appellant.
(1) The court erred in overruling appellant's instruction in the nature of a demurrer to the evidence. (2) The plaintiff being accustomed to riding on freight trains knew there was necessarily more or less jerking and jolting in starting and stopping the train, and assumed all the risk incident to riding on said train. There was no unusual or extraordinary jar or jolting of the train proven. Wait v Railroad, 165 Mo. 612, and cases cited; Erwin v Railroad, 94 Mo.App. 289, 297; and cases cited; Portuchek v. Railroad, 101 Mo.App. 52; Bartley v. Railroad, 148 Mo. 139; Stringer v. Railroad, 96 Mo. 299 and cases cited. (3) It is a matter of common knowledge that jolting and jarring are incident to the operation of freight trains, and, therefore, negligence cannot be inferred from a jar by the stopping of such train. Hedrick v. Railroad, 195 Mo. 117; Erwin v Railroad, 94 Mo.App. 297; Portuchek v. Railroad, 101 Mo.App. 55; Guffey v. Railroad, 53 Mo.App. 468; Bartley v. Railroad, 148 Mo. 139, and cases cited; Grisamore v. Railroad, 118 Mo.App. 390. (4) It is the settled rule in this State that where plaintiff in his petition, as here, specifies the particular act or acts of negligence that he must be restricted to it. Pryor v. Railroad, 85 Mo.App. 378; Jacquin v. Railway, 57 Mo.App. 320; Hite v. Railway, 130 Mo. 132; Bartley v. Railway, 148 Mo. 124; McManamee v. Railway, 135 Mo. 440. (5) The trial court erred in failing to require the jury to find separately on each count of the petition. There was a general verdict without specifying on which count of the petition it was based. There were different causes of action stated in the two counts of the petition; one for the negligence of the employees in operating the train; the other for failure of appellant to properly equip its engine and cars composing the train. The attention of the trial court was called to this error specifically in the motions for new trial and in arrest. Owens v. Railway Co., 58 Mo. 386; Biglow v. Railroad, 48 Mo. 512 and cases cited; Pitts v. Fugate's Admr., 41 Mo. 405; State ex rel. v. Dulle, 45 Mo. 269; Johnson v. Bedford, 90 Mo.App. 47; Shuck v. Pfenninghausen, 101 Mo.App. 700; State ex rel. v. Peterson, 142 Mo. 534; Bricker v. Railroad, 83 Mo. 391. The court erred in giving plaintiff's first instruction. McManamee v. Railroad, 135 Mo. 440; Breeden v. Mining Co., 103 Mo.App. 176; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railroad, 148 Mo. 64; Bartley v. Railroad, 148 Mo. 139 and cases cited; Grisamore v. Railroad, 118 Mo.App. 390; Thompson v. Bucholz, 107 Mo.App. 125; Kirby v. Railway, 85 Mo.App. 350; Wright v. Fonda, 44 Mo.App. 642, and cases cited; Bank of Fitchburg v. Westlake, 21 Mo.App. 565; Conway v. Railway, 24 Mo.App. 235; Breeden v. Mining Company, 103 Mo.App. 179; Bank v. Murdock, 62 Mo. 70; Mansur v. Botts, 80 Mo. 658, and cases cited; Glass v. Gelvin, 80 Mo. 302. As the trial issues must be within the paper issues, instructions must be framed with regard to the paper issues made. Whipple v. Building & Loan Ass'n, 55 Mo.App. 558, and cases cited; Hemphill v. Kansas City, 100 Mo.App. 566; Thompson v. Bucholz, 107 Mo.App. 125. (6) The trial court erred in overruling defendant's demurrer for the further reason that the physical facts disprove Bussell's statement as to how the injury was sustained, and the court is not bound by such statements. Gurley v. Railway, 104 Mo. 233; Spiro v. Transit, 102 Mo.App. 250; Phippin v. Railway, 196 Mo. 343, and cases cited; Spuhn v. Railway, 87 Mo. 84; Yarnell v. Railroad, 113 Mo. 570; Gilpin v. Railroad, 197 Mo. 325; Dakan v. Mercantile Co., 197 Mo. 255. (7) The court erred in giving plaintiff's instruction numbered 9 with the memorandum on the reverse side thereof. It was evidently the notes made by some attorney as to the evidence or argument in the case and was clearly erroneous and prejudicial. Baker v. Rice, 52 Mo. 23; Harrison v. Hance, 37 Mo. 185; Heller v. Pulitzer Pub. Co., 153 Mo. 215; Kennedy v. Holliday, 25 Mo.App. 518; Foster v. McO'Blenis, 18 Mo. 88; Padgitt v. Railroad, 159 Mo. 156.
A. G. Knight and E. M. Harber for respondent.
(1) Where a railway company undertakes to carry passengers for hire upon its freight trains, it owes to such passengers the same duties as to care which the law exacts of it in the transportation of passengers upon passenger trains. The only difference being that the passenger upon a freight train submits himself to the inconveniences and assumes whatever dangers, are necessarily incident to that mode of travel. Whitehead v. Railroad, 99 Mo. 263; McGee v. Railroad, 92 Mo. 208; Wagner v. Railroad, 97 Mo. 512; Vancleave v. Railroad, 107 Mo.App. 96; Muelhansen v. Railroad, 91 Mo. 332; Buck v. Railroad, 46 Mo.App. 555; Therman v. Railroad, 72 Mo. 62; Berry v. Railroad, 124 Mo. 223. (2) It is doubtless useless to waste time upon defendant's suggestions, that the petition in some parts said, there was one and in others, that there were two of plaintiff's ribs fractured, or that the court erred in not requiring the jury to find upon each count separately. No such request was made by the plaintiff and doubtless, if it had would have been overruled, as it properly should. Rinard v. Railroad, 164 Mo. 270; Schuler v. Railroad, 87 Mo.App. 618; Nolan v. Bedford, 89 Mo.App. 172; O'Neal v. Blase, 94 Mo.App. 648; McGuire v. Transit Co., 103 Mo.App. 459; Murphy v. Transit Co., 96 Mo.App. 272; Boyd v. Transit Co., 108 Mo.App. 303. (3) Defendant seems to seriously contend that some unintelligible memorandum, except to the maker, and possibly to him, made upon the back of the instruction number 9, was a very serious error, a comment if you please upon the evidence. A sufficient answer to this objection of defendant, if indeed such objection deserves any answer whatever, is that defendant makes no complaint thereof until in its motion for a new trial. (4) That the facts established by plaintiff make not only a prima facie, but a substantial case upon which plaintiff was entitled to the judgment of the jury, is by the Dorsey and Harris cases, as well as the Fullerton case, supra, fully established. Levels v. Railroad, 94 S.W. 275; Gannon v. Gas Co., 145 Mo. 502; Everman v. Eggers, 106 Mo.App. 732; Fullerton v. Carpenter, 97 Mo.App. 197; Veale v. Green, 105 Mo.App. 182; State v. Woodward, 171 Mo. 593; Holloway v. Kansas City, 184 Mo. 19.
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 fifth of March, 1905, the plaintiff boarded defendant's freight train at the town of Gilman for passage to Trenton, Missouri. 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, twenty-one inches high, and that the distance...
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