Coudy v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 79
• Parties: COUDY v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 79

COUDY

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Bennett Pike for appellant.

(1) The court erred in permitting, against the objection of defendant, the introduction of any evidence under the allegations of the petition, as it only contains a general charge of negligence, and under the rule adopted by our Supreme Court and the court of appeals, is fatally defective. Waldhier v. The Han. & St. Joe R. R. Co., 71 Mo. 514; Leduke v. St. Louis & Iron Mountain R. R. Co., 4 Mo. App. 485. (2) The plaintiff, upon his own testimony, ought not to recover, and the demurrer to the evidence, at the close of the plaintiff's case, should have been given. Wharton on Negligence, 363; Adams v. R. R., 4 C. P. 739; Geddes v. R. R., 103 Mass. 391. (3) The testimony of plaintiff, which was all the evidence in his behalf as to how the injury occurred, is absolutely irreconcilable with the physical facts surrounding the injury, and for this reason the court should have refused to submit the case to the jury. Powell v. R. R., 76 Mo. 80; 21 Fed. Rep. 892.

Johnson, Lodge & Johnson for respondent.

NORTON, J.

This suit was instituted in the circuit court of the city of St. Louis by plaintiff to recover damages for personal injuries received by him while a passenger on one of defendant's trains, alleged to have been occasioned by the negligence of defendant in the management of its train. The answer was a specific denial of the facts alleged in the petition, and also set up contributory negligence on the part of plaintiff. On the trial plaintiff obtained judgment for $6,000 damages, from which defendant appealed to the St. Louis court of appeals where the judgment was affirmed, from which defendant has appealed to this court.

The first point made in the brief of counsel is that the court erred in overruling defendant's objection to the introduction of any evidence under the petition, which objection was based on the ground that the petition only contained a general charge of negligence. This point is not well taken. The petition after setting out that plaintiff was a passenger on defendant's train, contains the following averments as to negligence, viz.: that “the defendant, by and through its servants, agents, and employes in charge of and managing said train, negligently and unskilfully ran and managed the same in such a way as to cause the said train, and the car in which the said plaintiff was being conveyed as aforesaid, to check its speed very suddenly, and to jolt and pitch the same suddenly, and with great force backward and forward, in such a manner and with such force as to cast and throw said plaintiff out of said car and upon the platform thereof, and from the said platform onto the track of said railroad under the said cars and train, by means and by reason of which the wheels of the said cars and train ran upon and over the left arm and left leg of the said plaintiff,” etc. These averments sufficiently notified defendant of what it had to defend against, and could not well be made more specific.

The next error assigned is the action of the trial court in overruling defendant's demurrer to the evidence at the close of plaintiff's case. The plaintiff, who was a boy fourteen or fifteen years of age at the time of the accident, testified as follows: “I was hurt August 25, 1880; was at that time living near Elwood station, Carondelet, and working on Third street and Chouteau avenue. I came up on the Iron Mountain road that morning; left home about six o'clock; my brother John came with me. I bought a ticket at Elwood station, and gave it to the conductor on the car that morning. I took a seat in the car the fourth from the last one in the train. I had three bundles right on the seat opposite me; one of them fell in the aisle, and as I raised to pick it up, there was a sudden jar, unusual, which threw me out. The seat I and my brother occupied runs parallel with the side of the car; the other seat to the right was cross-wise. The door opened on the opposite side east of me; the door was open at the time; the weather was warm. As I rose to get my bundle the jar threw me out against the railing and broke my teeth, and threw me backward off the car. I struck my head and it knocked me senseless. The train ran over my left leg and arm. At that time the train was a little north of Miller street; I noticed at the time we were just at Miller street. I was senseless when the wheels ran over me; I did not recollect for three or four days what had been done to me. The train checked right up running swift, did not leave much speed on at all; up to that time they seemed to be running very swift, I cannot say how fast. When I first came to consciousness I was in the city hospital; do not know what day that was; my left arm and leg were then off. I remained at the hospital for two months and was confined to the house for three or four months afterwards.”

On cross-examination, the witness said: “Before the bundle fell off the seat I had ridden from Elwood station to Miller street; the jarring of the car caused the bundle to fall off the seat; when it fell off I stooped down to pick it up. The bundle fell off the end of the seat; it contained my blouse. The door opened to the east side of the car opposite me; it was opened straight with the aisle of the car; I did not look to see whether anything held it fast; I do not think the door moved; when the jar came it did not close. The iron railing was on the end of the car. When I was thrown out of the car I did not go exactly straight, I suppose I must have went from one side to the other. I struck the upper part of the railing. I was in the habit of getting off the train after it stopped at the gas house, where they changed engines, foot of Poplar street. I struck the railing on the car and was thrown backward, and fell on the ground and struck on a piece of iron, I think. I did not talk to Dr. Dean at the hospital and tell him how the accident happened; I never saw Dr. Dean at the hospital that I know of. I fell...