Cook v. Missouri Pacific Railway Company

• Decision Date: 05 May 1902
• Citation: 68 S.W. 230,94 Mo.App. 417
• Parties: CHARLES S. COOK, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

68 S.W. 230

94 Mo.App. 417

CHARLES S. COOK, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1902

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Elijah Robinson for appellant.

(1) The demurrer to the evidence should have been sustained. There is not a particle of evidence tending to show negligence on the part of the defendant. The simple fact that plaintiff was struck by a mail cord (if such was the fact), is no evidence of negligence on the part of defendant's baggageman, who was loading the mail into the car at the time the accident is alleged to have occurred. Cooley on Torts (2 Ed.), p. 92; Sheldon v. Sherman, 42 N.Y. 484; Roynton v Rees, 9 Pick. 527; Express Co. v. Smith, 33 Ohio St. 511; Burton v. Davis, 15 La. An. 448; Brown v. Collins, 53 N.H. 442; Hanlon v Ingram, 3 Ia. 81; Richards v. Rough, 53 Mich 212. The rule res ipsa loquitur does not apply in this case. Gallagher v. Edison Ill. Co., 72 Mo.App. 576. (2) The verdict is so decidedly against the evidence in the case, that it is perfectly manifest that it was the result of passion or prejudice rather than of a fair and impartial consideration of the evidence and the instructions, and for this reason, if for no other, the judgment of the circuit court should be reversed. (3) The trial court committed error in giving plaintiff's instruction No. 2, for the reason that it was calculated to mislead the jury on the question of contributory negligence.

Hollis & Fidler for respondent.

(1) The demurrer offered by defendant was properly overruled. The evidence is abundant by plaintiff and his helper, and by the physical fact that the mail sack knocked his eye out, to support the finding of the jury that the agent of defendant was negligent in handling said mail sack. (2) The syphilitic part of the defense in this case is too weak to stand in court. No witness was offered by defendant who swore plaintiff had been afflicted with syphilis, but several swore he had not, and the jury so found. The doctrine of the assumption of risk has no application in this case; the rule of passenger applies. Mellor v. Railroad, 105 Mo. 455; McGoffin v. Same, 102 Mo. 540; Jones v. Railroad, 125 Mo. 666.

OPINION

SMITH, P. J.

--Action for recovery of damages for personal injuries. The petition alleged that on June 5, 1898, and for a long time prior thereto, he was and had been in the employment of the United States as railway postal clerk on defendant's train, running from Kansas City to Joplin, Misouri, by way of Pleasant Hill, and that while in the performance of his duty as such postal clerk in receiving the mail, one of the servants of defendant handled said mail in such a negligent manner that one of the sacks was thrown into plaintiff's face with such violence as to cause an injury which resulted in the loss of an eye, etc.

The answer was a general denial coupled with a plea of contributory negligence. There was a trial which resulted in judgment for plaintiff, and defendant appealed.

I. The defendant insists that the trial court erred in denying the demurrer offered by it at the conclusion of the evidence. This contention we do not think should be sustained. The plaintiff's own testimony was sufficient--barely so--to establish a prima facie case entitling him to a submission. But even if this is so, shall the judgment stand?

It is somewhat doubtful, under the evidence, whether or not the plaintiff was struck in the eye at all with a mail sack or the end of one, but if such was the fact we think it still more doubtful whether or not the injury complained of was the result of that stroke, or whether or not the stroke was the proximate cause of the loss of plaintiff's eye. Assuming that the defendant's baggageman did throw the sack from the truck into the mail car in such a way that it, or the cord used in connection with it, struck the plaintiff in the face or eye, it does not satisfactorily appear from the evidence that from the impact there was any bruise, contusion or abrasion about the eye, or discoloration of the eyelid, nor any congestion or inflammation of that organ nor any excretion of the lachrymal or tear gland. Neither the plaintiff's helper on the same mail car, nor any of the trainmen, seem to have noticed anything of this kind, on the day of the alleged injury, nor at any day subsequent thereto.

It appears that on the next day after that of the accident the plaintiff visited Dr. DeLap, an oculist of Kansas City and a witness called by plaintiff, who testified that he examined the plaintiff's eye and "found nothing wrong with it apparently." He further testified that "there was very slight congestion of the retina of the optic nerve," but so slight that he attached no importance to it. "I dilated the pupil and told him to come back the next day, and then I made a more thorough examination and that was when I found the condition I have just related. I did not find inflammation. The second day I thought he had a slight congestion, but it was so slight that I did not attach any importance to it." This witness further testified "that twelve days later on, the plaintiff came back with fully developed inflammation of the optic nerve of the retina. The optic nerve, where it entered the eye, was then very much swollen and congested, the blood vessels greatly enlarged and tortuous, and a hazy condition of the whole retina." He thought that the condition of the plaintiff's eye might very well have resulted from syphilitic condition of his system.

Two or three witnesses testified that the plaintiff had stated to them that he had syphilis, another that he had chancroid and to still another that he had gonorrhea. It further appeared that prior to the accident plaintiff had visited Hot Springs, Arkansas, where he consulted a physician who prescribed certain medicines and baths, but the name of the physician nor that of the druggist who filled the prescription, he testified he could not recollect. Plaintiff further testified that before he went to Hot Springs he had an abrasion or sore on his genital organs and had had himself examined for syphilis.

Amongst other witnesses called by defendant to testify were three experts, namely, Doctors Thompson, King and Tyree, who by reason of their great learning and skill had become eminent in their profession, the last of whom had been appointed by the court to examine the plaintiff's eye. The first of these experts testified as follows:

"Q. If a man were struck on the eyelid with a mail cord, a knot similar to this one, and the blow was not sufficiently hard to leave any external evidence of the fact what would be your opinion as to whether that would result in the loss of the sight of the eye? A. Well, it depends on how hard the blow was, whether it hit the eyeball, whether it might not injure the eye and not leave a mark on the face. But do you mean to say a trifling blow or a severe blow? Q. I have described it as well as I can. I said a blow not sufficiently hard to leave any external evidence of the fact that there had been a blow on the outside of the lid. A. Yes, sir; such a blow can make a man blind. Q. Would you think it would be at all probable that a blow of that kind would result in that way? A. No, sir; not probable. Q. I will ask you to state what would be your opinion if a man called on you to examine his eye, say on the evening of the sixth day of a certain month, and you found no evidence of any thing whatever the matter with it; but the man claimed that he could not see and you dilated the eye and told him to call again the next morning and he called and you examined it again, with such instruments as you have for the purpose, and found slight congestion of the optic nerve, and twelve days afterwards he called again and you examined it and found a fully developed case of inflammation of the optic nerve of the retina, and from that time on it should grow worse until, say, the middle or last of the second month afterwards, and then you found ophthalmia and the eye totally blind, or practically so, what would be your opinion as to whether or not that probably resulted from being struck on the eyelid with a mail cord the day before the first examination?...