Clark v. Chicago & A. R. Co.

• Decision Date: 05 March 1895
• Citation: 29 S.W. 1013,127 Mo. 197
• Court: Missouri Supreme Court
• Parties: CLARK v. CHICAGO & A. R. CO.

29 S.W. 1013

127 Mo. 197

CLARK v.CHICAGO & A. R. CO.

Supreme Court of Missouri, Division No. 2.

March 5, 1895.

CARRIERS — INJURY TO PASSENGER AT CROSSING — NEGLIGENCE — BURDEN OF PROOF — DEFENSES — NEGLIGENCE OF INTERSECTING ROAD — EXCESSIVE DAMAGES.

1. Where a passenger is injured while in the car of a railroad company by a collision with the train of another company, the burden of showing that the accident was not due to the negligence of the company in whose car he was riding is on such company.

2. Evidence that plaintiff was in one of defendant's sleeping cars, and that the train was stopped at midnight, when partly across the line of an intersecting road, and allowed to remain across the track for five minutes, without any attempt being made to flag the trains of the other company, and that a train of the latter company collided with the car in which plaintiff was, justifies a finding that defendant was negligent.

3. A railroad company which allows a train filled with passengers to remain standing across the track of an intersecting road cannot, in defense to an action by an injured passenger, allege that it relied on the observance by the employés of the latter road of a statute requiring trains of intersecting roads to come to a full stop before going over crossings.

4. Where plaintiff, who was a member of a firm doing a business of $750,000 a year and had the management of its finances, was injured so that he was confined to his bed for a month, and under medical treatment for three months, at a cost of $750, and at the time of the trial, two years after the injury, he was suffering from insomnia and from pains in his back and spine, and was still under the care of his physician, who testified that he would never be well until a surgical operation was performed, and that the trouble would likely be of long standing, if not permanent, a verdict for $7,500 was not excessive.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by James E. Clark against the Chicago & Alton Railroad Company to recover for injury received while a passenger on a train of defendant.From a judgment for plaintiff, defendant appeals.Affirmed.

R. H. Kern and John A. Bellatti, for appellant.Geo. W. Bailey, for respondent.

GANTT, P. J.

On the night of December 3, 1890, James E. Clark, the plaintiff, was a passenger on one of defendant's trains traveling from Chicago, Ill., to Kansas City, Mo.It was a fast train, known as the "Hummer."He purchased his ticket in Chicago, and retired to sleep in one of the sleeping cars of the train.The train reached Jacksonville, Ill., about midnight.At this point the Chicago & Alton Railroad's track extends north and south, and is intersected by the tracks of the Wabash Railroad, which extend east and west.The tracks of each road cross the other at grade.There were two sleeping cars attached to defendant's train in which plaintiff was a passenger, and he was in the forward of the two.The train reached Jacksonville from 10 to 20 minutes behind time, and a few minutes after midnight.It stopped about 100 or 150 feet from the intersection, and in full view of it, and the engineer, seeing the crossing was clear, drew his train into the station and stopped.When it stopped the locomotive was 30 to 50 feet north of the south end of the depot platform, and the two sleeping cars and about 20 feet of the north end of the chair car, comprising at least 160 feet of the train, were left standing north of the intersecting Wabash Railroad track.There was no physical or other reason which rendered it absolutely necessary to stop the train with a portion of it north and the other part south of the Wabash track, but it was a matter of convenience in handling baggage, freight, and express matter, and discharging passengers at the depot and on the platform.The platform could have been made longer without interfering with any other highway.No flagmen were stationed on the Wabash track or elsewhere to keep a lookout for the Wabash train, which was an hour and a half late that night.There was much evidence that the Wabash train whistled three times in the mile and a half east of the station as it approached, and no one connected with defendant's train heard any but the last signal, which was given a few seconds before the collision.While this train was thus standing across the Wabash track, a Wabash freight train, consisting of 19 cars loaded with coal, and going west, collided with defendant's train, crushing through the sleeping car "Matterhorn," in which plaintiff was asleep, cutting the car into two parts, between the center and the north end, killing two of the passengers and wounding several, and inflicting the injuries to plaintiff for which this action is brought.

The petition seeks to recover the damages plaintiff has suffered by defendant's failure, through negligence, to safely carry plaintiff from Chicago to Kansas City, as it had, as a common carrier, agreed to do, in that it "negligently, carelessly, needlessly, and with a reckless disregard of the rights and safety of plaintiff and its duty to him, placed said train of cars, one of said cars being the sleeping car in which plaintiff was asleep and unconscious, directly upon and across the railway and right of way of the said Wabash Railroad Company, and carelessly, negligently, unlawfully, needlessly, and with a reckless disregard of plaintiff's rights and safety, and of defendant's duty and obligation to plaintiff as its passenger, there permitted said train to stand, remain, and unlawfully and negligently obstruct, and for an unusual and dangerous and unreasonable length of time stand across, said Wabash tracks and right of way, and thus carelessly exposed said train and plaintiff to the imminent danger and peril of collision with the trains of the Wabash Company, and, while thus standing upon and across the right of way of the Wabash Railroad Company, defendant negligently suffered said train and sleeping car to be violently struck, run into and upon and against and through by a locomotive and cars of the Wabash Railroad Company, and said sleeping car crushed, shattered, and cut in two parts, demolished, and wrecked; that plaintiff's person was caught and became entangled in said wreck, and plaintiff was crushed and bruised, and severely injured, and rendered unconscious thereby, and, while so unconscious, was knocked or carried in said wreck, by said locomotive, several yards distant, and finally tossed upon a bed of snow and ice which was then and there existing beside said railroad tracks of said Wabash Railroad Company, where he lay unconscious until picked up by bystanders and taken into the railway station of defendant for protection and medical attention.Plaintiff alleges that the direct and proximate cause of said collision was the failure of the agents, servants, and employés of the defendant to exercise due and even ordinary diligence and precaution to prevent the same, and the failure of the agents, servants, and employés of defendant to exercise that degree of precaution which, if exercised, would have rendered said collision impossible; that the agents, servants, and employés of defendant could have prevented said collision by the exercise of even due and ordinary diligence after they had discovered, or might have discovered by the exercise of ordinary care, the peril and danger to which the plaintiff was exposed by the conduct of the agents, servants, and employés of said Wabash Railroad Company, but failed to exercise the same.Plaintiff states that by reason of said collision, and as a result thereof, his body was severely wounded, bruised, contused, and wrenched, both externally and internally, and that his spinal column was particularly wrenched and permanently injured, and that he suffered great bodily and mental pain as direct results of said injury and collision, and was confined to his bed and room, by reason thereof, for a long period of time, to wit, for the period of about three months; that by reason of said injury he was disabled and prevented from attending to his business affairs and interests for the space of over six months, and from giving but partial attention to the same for the space of over one year, and that ever since said injuries he has been, and still is, unable to give ordinary or usual attention to the same; that ever since said accident, and as direct results thereof, and by reason of said injuries, he has suffered, and will continue to suffer, great bodily pain, annoyance, inconvenience, and expense; that as direct result of said injuries and collision he was compelled to procure, and did procure, necessary medical attention, and services and treatment which then were necessary, and still are, and will continue to be necessary for an indefinite period, and that on account of said services alone he has been put to the expense of about the sum of eight hundred dollars.Plaintiff states that by virtue of the premises he has been injured and damaged in body, mind, health, pain and suffering, loss of time, and necessary expenses, in the sum of twenty thousand dollars, for which sum, together with his costs in this behalf expended, he prays judgment against said defendant."

The defendant in its answer admits that it was a common carrier as alleged, and pleads that, under the laws of the state of Illinois in force then, all railroads were made public highways, among others the said Wabash Railroad Company; that as such they were required to maintain depots for the transaction of their business by the laws of the state of Illinois, and that all trains approaching the crossing of another railroad on the same level were required to come to a full stop before reaching the same, within 800 feet therefrom, and the duty of the engineer was to see before he crossed that the way was clear, and that the train could safely proceed; that a railroad could obstruct any public...