Daly v. Pryor

• Decision Date: 05 November 1917
• Docket Number: No. 12104.,12104.
• Citation: 198 S.W. 91,197 Mo. App. 583
• Parties: DALY v. PRYOR.
• Court: Missouri Court of Appeals

198 S.W. 91

197 Mo. App. 583

DALY v. PRYOR.

No. 12104.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Appeal from Circuit Court, Adair County; C. D. Stewart, Judge.

Action by Mary E. Daly against Edward B. Pryor, receiver of the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Higbee & Mills, of Lancaster, for appellant. Weatherby & Frank and Campbell & Ellison, all of Kirksville, and Sebree, Conrad & Wendorff, of Kansas City, for respondent.

BLAND, J.

Plaintiff, the wife of James Daly, deceased, brought this action alleging that defendant negligently caused his death. The jury found for plaintiff in the sum of $3,000.

The facts show that during the month of August, 1913, James Daly, accompanied by his daughter-in-law, was a passenger on one of defendant's trains from Kansas City, Mo., to Ottumwa, Iowa. Daly and his companion changed trains at Moberly, Mo., about 1:30 a. m. of the night of August 4, 1913. That part of the train upon which the deceased traveled north from Moberly consisted of two sleepers and a chair car. These three cars were all vestibule cars. Deceased and his companion were seated in the chair car, which was in front of the two sleepers. Shortly after the train left the station at Kirksville, Mo., deceased was missed by his daughter-in-law (who died before the trial), and the conductor made a search for him and could not find him. In the early morning of the same day deceased's body was discovered lying between defendant's tracks about one-half a mile south of the station at Kirksville. The train was north-bound. The evidence shows that there was a good sized pool of blood at the place where deceased's head lay when he was found. An examination of the track revealed that at a point about 25 feet south of his body two heel prints were noticed upon a tie between the rails, almost at the center of the track. A short distance north of the heel prints was a mark in the cinders and gravel showing where the cinders had been scraped up; a few feet north of this was another mark of the same kind, and some farther north was another similar mark, the body lying 5 or 6 feet north of the last-named mark in the cinders. Deceased's hat was found still farther north on the track. The hat contained a check showing he was en route to Ottumwa, Iowa. There was no evidence of any marks in the cinders south of these heel prints. Several matches were found on the track, scattered along between the rails from the heel marks on the tie to where deceased lay, of the same description as those found in deceased's vest pocket. An examination of the body showed that the right side of the face contained particles of cinders; that the back of the coat was torn, and that blood was running from the nose and ears of the deceased; that there was a number of bruises on the back and a severe bruise over the right ear; that the heel of one shoe was partly torn loose and a cinder lodged in the shoe where broken. The train was proceeding at the rate of about 40 miles per hour when it passed the spot where deceased's body was found.

It is plaintiff's theory that the deceased fell from the rear sleeper; that knowing the train was a vestibule train he walked to the rear for some purpose not known, and on stepping on the rear platform found the gate at the rear car open, and fell through that gate and met his death.

The defendant introduced evidence tending to show that the rear gate was up and securely fastened at the time the train passed the point where deceased's body was found. This was sworn to by the conductor and brakeman. Defendant also introduced testimony tending to show that the deceased just as the train was slowing up for Kirksville was seen walking toward the door of the car in which he was seated, along with some other persons who intended to get off at Kirksville. Defendant further showed that during the same night two persons were murdered a short distance from where deceased's body was found. Defendant's theory of the case is that deceased left the train at Kirksville and walked back half a mile down the track, and was waylaid and killed. There was no evidence of robbery. The specific negligence charged in the petition is that defendant negligently failed at all times between stations and while said train was in motion to keep the openings in said train securely closed and fastened to prevent passengers thereon from falling through or out of said openings.

The first point made by the defendant is that a demurrer to the evidence should have been sustained. Defendant urges that the verdict of the jury in favor of plaintiff is based upon conjecture as to how deceased met his death.

From the evidence detailed above we believe that plaintiff made out a strong case of circumstantial evidence that deceased met his death through leaving the rear end of the train, and consequently there was sufficient evidence of probative force from which the jury could have found such fact. While it was the duty of plaintiff to establish this fact and make out a prima facie case, and not the duty of the defendant to advance a more plausible theory as to how the deceased met his death, the evidence fails to disclose any reasonable theory other than that the deceased fell from the rear of the train. The only explanation suggested by the defendant as to how plain...