Campbell v. Terminal R. Ass'n of St. Louis

• Decision Date: 04 April 1939
• Citation: 126 S.W.2d 915,235 Mo.App. 56
• Parties: DOROTHY CAMPBELL, A MINOR, JAMES CAMPBELL, A MINOR, AND GEORGE CAMPBELL, A MINOR, BY LUCRETIA JONES, THEIR NEXT FRIEND, RESPONDENTS, v. THE TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, A CORP., APPELLANT
• Court: Missouri Court of Appeals

126 S.W.2d 915

235 Mo.App. 56

DOROTHY CAMPBELL, A MINOR, JAMES CAMPBELL, A MINOR, AND GEORGE CAMPBELL, A MINOR, BY LUCRETIA JONES, THEIR NEXT FRIEND, RESPONDENTS, v. THE TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, A CORP., APPELLANT

Court of Appeals of Missouri, St. Louis

April 4, 1939

Appeal from the Circuit Court of City of St. Louis.--Hon. Harry F Russell, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Arthur F. C. Blase and Durward S. Brown for respondents.

(1) The court did not err in giving and reading to the jury Instruction Number One, requested by plaintiffs. Crenshaw v. St. Louis Pub. Serv. Co., 52 S.W.2d 1035. (2) The court did not err in refusing to permit defendant to introduce in evidence defendant's Exhibit Number Three being the hospital record of James Campbell, deceased. Rush v. Metropolitan Life Ins. Co., 63 S.W.2d 453; Vermillion v. Prudential Ins. Co. of America, 93 S.W.2d 45.

T. M Pierce, J. L. Howell and Walter N. Davis for appellant.

(1) The court erred in giving and reading to the jury Instruction Number One, requested by plaintiff, over defendant's objections and exceptions. (2) The court erred over defendant's objections and exceptions in refusing to permit defendant to introduce in evidence defendant's Exhibit 3, offered by defendant and refused by the court, the same being a hospital record of James Campbell, deceased. (3) Plaintiff's Instruction No. 1 is erroneous, for that, in a case based on the doctrine res ipsa loquitur, it instructs the jury, not only that negligence on the part of defendant is presumed, but that the burden of proof is on defendant to absolve itself of negligence. This was error, for, under the doctrine res ipsa loquitur, negligence on the part of defendant is not presumed, and the burden of proof rests on the plaintiffs throughout the trial to demonstrate to the reasonable satisfaction of the jury by the preponderance or greater weight of the evidence that defendant was guilty of negligence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 47.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This suit was brought on behalf of the three minor respondents above named, as plaintiffs, by their next friend, against appellant, as defendant, to recover damages for the death of the father of said minors. The cause was tried before the court and a jury and resulted in a verdict and judgment in favor of plaintiffs and against defendant in the sum of $ 3,000. Defendant has duly appealed from said judgment.

The second amended petition of plaintiffs, upon which the case was tried, alleged that Dorothy Campbell, James Campbell and George Campbell are minors of the ages, respectively, of seventeen, sixteen, and twelve years; that Lucretia Jones was duly appointed their next friend by the Circuit Court of the City of St. Louis, Missouri; that plaintiffs are the only children of James Campbell, who died in the City of St. Louis, Missouri, on June 4, 1934, leaving no wife or widow of a deceased child surviving him; that, on June 4, 1934, defendant operated a freight train, consisting of a locomotive and a number of freight cars, in a northerly direction upon its railway track upon McKissock Avenue near the intersection of said McKissock Avenue and John Avenue, both open public streets in the City of St. Louis, Missouri; that, at said time and place, defendant negligently suffered and permitted a door of one of its freight cars in said train to project and swing outwardly from the side of said freight car while said car and said train were in motion; that said James Campbell, while lawfully walking in a northerly direction upon McKissock Avenue, was violently struck on the head and body by said projecting swinging car door, and thrown against the side of the train with great force and violence, whereby he was caused to sustain multiple fractures of the skull and lacerations of the brain, as a direct and proximate result of which injuries he died on June 5, 1934; that said Campbell's injuries and death were directly and proximately caused by the aforesaid negligence of defendant. Plaintiffs prayed judgment against defendant in the sum of $ 10,000.

The answer of defendant to plaintiffs' second amended petition contained a general denial, followed by allegations to the effect that the injuries and death of Campbell were occasioned by his own negligent acts and without any fault on the part of defendant. Facts were alleged in the answer charging that Campbell was a trespasser on the train and was injured when he attempted to alight from one of the cars while it was in motion.

Defendant further alleged in its answer that the deceased James Campbell left surviving him a widow, who, as such widow, had within six months after the death of said Campbell filed a suit in the Circuit Court of the City of St. Louis, and had thus appropriated the cause of action for the death of said Campbell, thereby abating this suit brought by the minors herein; and prayed that this action be stayed and prosecution thereof be enjoined. This last-mentioned charge in defendant's answer, challenging the right of the minors to bring this suit, was abandoned in the trial court and is not before us on this appeal.

The reply of plaintiffs was a general denial.

The petition of plaintiffs is based upon the doctrine res ipsa loquitur, charging that defendant permitted a door of one of its freight cars, while defendant's train was in motion proceeding along McKissock Avenue, a public street, to project and swing outwardly from the side of its freight car, striking James Campbell on the head and body with such force as to cause him injuries from which he died the next day.

Defendant has briefed and argued but one point in this court, and that is that the court erred in giving and reading to the jury, over defendant's objections and exceptions, instruction number one requested by plaintiffs. Therefore, it will not be necessary to review the evidence further than to show the circumstances under which James Campbell sustained the injuries which caused his death.

It appears from the evidence that about 2:30 p. m. on June 4, 1934, defendant operated a freight train northwardly along McKissock Avenue on its east track, known as the northbound track.

Roosevelt Stokes, a witness for plaintiffs, testified that he saw James Campbell, the deceased, walk out of the gate at his home, which was about ninety feet south of John Avenue, an east and west street intersecting McKissock Avenue; that, after Campbell latched the gate, he walked about ten feet north in the direction in which the train was moving; that, as the train was passing Campbell while he walked along McKissock Avenue, the door of a refrigerator car in the train about one hundred feet south of Campbell was open, and, as the train moved northwardly, the refrigerator door of the car struck Campbell in the back and around the shoulder, causing him to fall in a spinning manner; that the refrigerator car door was projecting out about two and a half feet from the side of the car; that the distance from the gate of Campbell's home to the east track was about eighteen feet; that, for about seven or eight steps, Campbell walked near to the fence at his home, but after walking that short distance he angled toward the train and got alongside thereof; that the door which struck Campbell was on a refrigerator car which was about fifteen or twenty cars from the rear of the train.

Everett Roberts, a next door neighbor of James Campbell, testified that he came out of the Federal Paper Stock Company just north of John Avenue on McKissock Avenue and saw James Campbell lying about two feet from the railway track, and it looked to the witness like Campbell's skull was mashed in, and blood was running out of his mouth and nose; that the witness had left Campbell only a short while before when the witness went into the Federal Paper Stock Company. The witness testified that McKissock Avenue was a common dirt and cinder street, and cinder sidewalk.

Tom Griffin testified, on behalf of plaintiffs, that he knew James Campbell and saw him on June 4, 1934, along by Campbell's home on McKissock Avenue. The witness testified that, while he was going north, he met Campbell on McKissock Avenue while the train was passing; that, after he passed Campbell, he heard a noise; somebody was hollering, and he turned around and saw a yellow door on a refrigerator car in the train swinging backwards and forwards; that the door projected out from the side of the train a distance of nearly three feet; that Campbell was down at that time; that the witness went back to where Campbell was lying, and saw that Campbell's skull was mashed in and blood was coming out of his mouth and nose.

Campbell was taken to the St. Louis City Hospital No. 2, where he died the next day.

Dr. J. Liebmann testified as a witness for plaintiffs, and, in answer to a hypothetical question embodying a description of the injuries sustained by Campbell, stated that in his opinion the injuries described caused Campbell's death.

Defendant produced a number of witnesses, among them members of its train crew and inspectors of its trains, including the locomotive engineer on the train in question, the foreman of the switch crew, and a crossing watchman. They gave testimony showing that the doors of the cars making up the train had been properly inspected immediately prior to the time it was operated along McKissock Avenue and immediately after Campbell was injured, and that there were no car doors swinging open on the train from the time it left defendant's yards in Madison, Illinois, and the time it reached Carrie Avenue in St....