Curry v. St. Louis-San Francisco Railway Co.

• Citation: 296 S.W. 473,221 Mo.App. 1
• Parties: WILLIAM A. CURRY, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. [*]
• Decision Date: 09 June 1927
• Court: Missouri Court of Appeals

296 S.W. 473

221 Mo.App. 1

WILLIAM A. CURRY, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri

June 9, 1927

Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.

Judgment affirmed.

E. T Miller and Ward & Reeves for appellant.

(1) The court erred in holding plaintiff's petition stated a cause of action. Plaintiff's petition merely pleads "while the train was crossing a bridge over a creek, the bridge gave way and caused the train on which plaintiff was riding to fall to the ground with great force and violence." There is no allegation of negligence or failure in any manner on the part of defendant, and a suit even under the rule of res ipsa loquitur is based upon negligence and a petition states no cause of action without charging negligence, either general or special on the part of defendant, and defendant's ore tenus demurrer (Abst. 13) should have been sustained. State ex rel. Long v. Ellison (Mo. Sup.), 199 S.W. 989; Wyler v. Ratican, 150 Mo.App. 479; Rueter v. Railroad Ass'n, 261 S.W 715; Heckfuss v. Railroad Co. (Mo. App.), 224 S.W. 99; Sec. 1220, R. S. 1919; Otto v. Railroad, 12 Mo.App. 168; Mack v. Railroad, 77 Mo. 232. The objection is not waived and the statute cannot be ignored. Sec. 1220, R. S. 1919; Kramer v. Light Co. (Mo. Sup.), 279 S.W. 43. (2) The court erred in refusing to sustain defendant's demurrer offered at the close of the whole case. (a) Under the rule of res ipsa loquitur, invoked in this case, by plaintiff pleading general negligence of an injury to a passenger caused in the wreck, the plaintiff made out by presumption a case when he showed: (1) That he was a passenger, (2) the wreck, (3) his injury. But when defendant's proof showed the wreck caused by vis major then the presumptive case of negligence made by the rule of res ipsa loquitur is conclusively overcome and defendant is legally excused and plaintiff will be cast on demurrer unless he comes forward and shows some act of negligence on the part of the defendant that caused, or was the moving factor directly cooperating with the act of God in producing the wreck and injury, and unless such proof is produced, then the demurrer should be sustained. Hurch v. Railroad, 252 Mo. 39, 48; Davis v. Railroad, 89 Mo. 340, 350; Evans v. Railroad, 222 Mo. 456-457; Turner v. Haar, 114 Mo. 335, 346-7; Wolf v. Express Co., 43 Mo. 421; Read v. Railroad, 60 Mo. 206; Sawyer v. Railroad, 37 Mo. 241, 257-59; Reeves v. Railroad, 10 U.S. 189 (Wall.) , 190; Reeves v. Railroad, 77 U.S. 176; Hite v. Ry. Co., 130 Mo. 135-140. (b) Plaintiff's case, having been made out on a presumption, when the proof comes in of the actual facts, then the presumption goes out. Guthrie v. Holmes, 272 Mo. 233; Tetwiler v. Railroad, 242 Mo. 194; Glassman v. Harry, 182 Mo.App. 304-308; Hite v. Railroad, 130 Mo. 138-140; Sowders v. Railroad, 127 Mo.App. 119; Mockawik v. Railroad, 196 Mo. 550, 571; Bragg v. Railway, 192 Mo. 331, 354; Hurck v. Railroad, 252 Mo. 39, 48; Davis v. Railroad, 89 Mo. 340, 350; Evans v. Railroad, 222 Mo. 457. (c) The negligence, if any, permitting rotten or defective piling to be in the bridge must have been an "active agent in bringing about the loss and without which agency the loss would not have occurred, and it must be such as to effectively cause the wreck. It must be a natural and probable consequence of the negligence, that is to say, the injury must have some natural connection with the negligence in the probable course of affairs." Coleman v. Railroad, 36 Mo. 476, 491; Instruction No. 2, 481, case supra; Moffit Commission Co. v. Railroad, 113 Mo.App. 544, 547; Davis v. Railroad, 89 Mo. 340, 350-54; Green v. Ins. Co., 69 Mo.App. 429; Turner v. Haas, 114 Mo. 335; American Ass'n v. Talbot et al., 141 Mo. 674; Johnson & Co. v. Ice & Refrig. Co., 143 Mo.App. 456.

Douglass & Inman and A. T. Brewster for respondent.

(1) Plaintiff's petition in this case states a cause of action, as it alleges general negligence, which is proper in such cases. Bond v. St. Louis-San Francisco Ry. Co., decided by the Supreme Court October 11, 1926, not yet reported, but printed in full in the back of this brief; Price v. Railroad, 220 Mo. 435; Trowbridge v. Fleming et al., 269 S.W. 610. (2) The doctrine of res ipsa loquitur applies in this case, for: (a) Where a passenger is injured by the wreck of a train it is firmly established in this State that the proof of these facts makes a prima-facie case for the jury, and the burden of relieving itself from liability is then cast upon the defendant; and whether or not the defendant has successfully met the prima-facie case made by plaintiff is always a question for the jury. Simpson v. Railroad, 192 S.W. 739; Brown v. Railroad, 256 Mo. 522, 535-6; Anderson v. Railroad, 290 Mo. 1, 8; Gibson v. Wells, 258 S.W. 1; Cecil v. Wells, 259 S.W. 844; Gleeson v. Va. Midland R. R. Co., 140 U.S. 435; Whitlow v. Frisco Railroad, 282 S.W. 525 (same accident). (b) The evidence of the defendant that there was an unusual rain was met by the plaintiff's rebuttal evidence by showing facts from which the jury could infer that the defendant's negligence was either the sole or a concurring cause of the wreck in failing to make inquiry as to the character and extent of the rain; the failure of the track foreman to watch the bridge, as required by defendant's rules; that the piling under the defendant's bridge were rotten and defective; that the bridge piling was not safely anchored. See authorities (a), supra. (3) Plaintiff's Instruction B properly declares the law in this State in a case like this, as has been repeatedly held in many cases. It is almost identical with instructions that will be found in the following cases: Simpson v. Railroad Co., 192 S.W. 739; Price v. Railroad, 220 Mo. 435; Whitlow v. Frisco Railroad, 282 S.W. 525, same instruction.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.

This is an action for personal injury. Plaintiff recovered and defendant appealed.

Plaintiff received the injuries for which he sues in a wreck September 1, 1922. In the petition plaintiff invoked the rule of res ipsa loquitur. The answer is a general denial and a special plea that the wreck was caused by an unprecedented rainfall and flood which could not have been foreseen or anticipated.

Error is assigned (1) on the petition; (2) on the refusal of an instruction in the nature of a demurrer to the evidence at the close of the case; (3) on the admission of evidence; and (4) on the instructions.

It is contended that the petition does not state a cause of action. The petition alleges that plaintiff was a passenger on the train at the time of the wreck; that he boarded the train at St. Louis; that his destination was Steele, Missouri, and that he had paid his fare. Then follows this allegation: "That while he was a passenger on said train, on said line of railroad as aforesaid, and when said train had reached a point on its said line of railroad at or near Starland in the county of Perry and State of Missouri, and while it was crossing a bridge over a creek, the bridge gave way, and caused the train on which plaintiff was riding to fall to the ground with great force and violence; that as a result of the giving way of the bridge or trestle and fall of the train or part of the train, plaintiff sustained serious and permanent injuries as follows."

Following the allegation set out above are the specifications of injury somewhat in detail, and then this allegation: "That said injuries were directly caused on account of the negligence of the defendant."

The mere allegations that the relation of carrier and passenger existed, and that while such relation existed the passenger was injured, in connection with the carriage, without the further averment in general terms, at least, that the injury resulted from the carrier's negligence, would not be sufficient to state a cause of action under the rule of res ipsa loquitur. [Rawson v. Railroad, 129 Mo.App. 613, 107 S.W. 1101; Reel v. Consolidated Investment Company, 236 S.W. 43.] But in the petition here it is specifically alleged that the injuries complained of "were directly caused on account of the negligence of the defendant." The petition, we think, is sufficient to state a cause of action under the rule of res ipsa loquitur.

The sufficiency of the evidence is challenged. This assignment is based upon this course of reasoning. It is conceded that plaintiff made a prima-facie case based on a presumption when he made proof (1) that he was a passenger; (2) that the train wrecked; and (3) that he was injured in the wreck. The prima-facie case based on a presumption, defendant contends, was totally destroyed by the evidence of defendant whereby, it is argued, defendant conclusively established that there was no negligence (1) in the equipment of the train; (2) in the operation or speed of the train; (3) in the construction, maintenance and inspection of the bridge; but that the wreck was caused by vis major, here an unprecedented rainfall. Defendant says that having established the facts, having brought in the facts, the presumption upon which plaintiff's prima-facie case rested, vanished, went out, and that the foundation of plaintiff's prima-facie case having been destroyed, the cause was left unsupported by presumption or evidence. This status having been created, defendant urges, plaintiff could not recover unless he brought forward evidence of some specific act or acts of negligence on the part of defendant. It is contended that plaintiff failed to offer such evidence, and that therefore, he cannot recover, and that the demurrer was erroneously refused. As supporting this theory defendant cites Guthrie v. Holmes, 272...