Doster v. Chicago, M. & St. P. Ry. Co.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJohnson
Citation158 S.W. 440
Decision Date05 May 1913
PartiesDOSTER v. CHICAGO, M. & ST. P. RY. CO.
158 S.W. 440
DOSTER
v.
CHICAGO, M. & ST. P. RY. CO.
Kansas City Court of Appeals. Missouri.
May 5, 1913.
Rehearing Denied June 30, 1913.

1. CARRIERS (§ 315) — INJURIES TO PASSENGERS — ACTIONS — VARIANCE.

Where a passenger sued two connecting carriers for injuries received while the car in which she was riding was being transferred from one railroad to the other, she can recover against one of them on proof of a negligent act after having dismissed as to the other, whether her action is based upon a joint act or upon the several concurring and co-operating acts of the carriers.

2. DAMAGES (§ 158) — PLEADING AND PROOF — PERSONAL INJURIES.

Where a complaint for personal injuries alleged serious injury to the hips, evidence of a fracture of the hip bone was within the averment of the complaint.

3. CONTRIBUTION (§ 5) — JOINT TORT-FEASORS.

In an action for personal injuries, received while a passenger car was being transferred from one carrier to another, where the complaint had been dismissed as to one of the carriers, recovery could be had against the other company only upon proof that its wrongful act caused the injury, and such carrier could not claim contribution from the other carrier.

4. TRIAL (§ 127) — MISCONDUCT OF COUNSEL — IMPROPER ARGUMENT.

In such a case it was prejudicial error for the plaintiff's counsel to argue to the jury that the defendant company could litigate with the other the question whether its action caused the injury.

5. TRIAL (§ 133) — MISCONDUCT OF COUNSEL — ACTION BY COURT.

Such error was not cured by an instruction that the jury should not consider that question, where the court refused the defendant's request to instruct them that the defendant could not recover against the other carrier in any circumstances.

Error to Circuit Court, Jackson County; James H. Slover, Judge.

Action by Elizabeth Doster against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for the plaintiff, and defendant brings error. Reversed and remanded on rehearing.

Elijah Robinson and Kimbrough Stone, both of Kansas City, and E. M. Harber, of Trenton, for plaintiff in error. Edw. J. Anderson, of Lathrop, and Lathrop, Morrow, Fox & Moore, of Kansas City, for defendant in error.

JOHNSON, J.


Elizabeth Doster, of Doster, Mich., was injured December 3, 1907, while a passenger in a tourist sleeping car operated successively over the connecting lines of the Chicago, Milwaukee & St. Paul Railway Company and the Missouri Pacific Railway Company. She was one of a family party starting on a pleasure trip from Michigan to California. Fare for the through trip was paid to the agent of the Michigan Central Railway at Doster, though he had no tickets to California. He gave her an order for a through ticket reading over the Chicago, Milwaukee & St. Paul Company's line from Chicago to Kansas City and thence westward over the line of the Missouri Pacific Company. She received the ticket at Chicago and proceeded on her journey as a passenger in a sleeping car bound for San Diego. In transferring the car to the Missouri Pacific line at Kansas City it was necessary to switch it over many side tracks, and it was finally left standing on a transfer track. Before the Missouri Pacific Company took it in charge, it was struck by an engine of the Milwaukee Company with such violence as to throw Mrs. Doster to the floor and injure her. She brought an action for damages against both companies, alleging that they "carelessly and negligently caused, permitted, and suffered the car upon which plaintiff was a passenger as aforesaid, to be

158 S.W. 441

jerked, thrown about, bumped into, and collided with in the yards or on the tracks of defendants at or near Kansas City, Mo., and on or about December 4, 1907, with such force and violence that plaintiff was by reason thereof thrown on, over, and against the seats and onto the floor of said car in which she was a passenger with great force and violence, and all by reason of the negligence of the defendants herein." At the close of the evidence a peremptory instruction directing a verdict for the Missouri Pacific Company was given, when plaintiff dismissed the action as to that company. The remaining defendant thereupon objected to the submission of the cause against it alone for the reason that the plaintiff had charged a joint wrong in her petition and should not be allowed to recover on proof of a single wrong. The objection was overruled, and the case was submitted to the jury by instructions for the plaintiff on the theory of a single or separate wrongful act committed by the remaining defendant, and a verdict was returned in favor of the plaintiff for $7,500. By direction of the court a remittitur was entered and judgment was rendered for $6,000. The cause came to this court by writ of error sued out by the Milwaukee Company. During its pendency in this court Mrs. Doster, the plaintiff, died, and the administrator of her estate...

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8 practice notes
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...legal and not equitable in character. Hutchinson v. Safety Gate Co., 247 Mo. 71; Flenner v. Cook, 221 Mo. App. 160; Doster v. Ry. Co., 158 S.W. 440; Moudy v. Dressed Beef & Provision Co., 149 Mo. App. 413. (b) Though it is true that equity had original jurisdiction in contribution growing o......
  • Stoutimore v. Santa Fe Ry. Co., No. 33227.
    • United States
    • United States State Supreme Court of Missouri
    • March 10, 1936
    ...verdict here is proper because the proof authorizes recovery against the company and the discharge of the conductor. Doster v. Ry. Co., 158 S.W. 440; State ex rel. Mersereau v. Ellison, 260 Mo. 129, 168 S.W. 744; Berkshire Lumber Co. v. Chick Inv. Co., 168 Mo. App. 342, 153 S.W. 1078; Mille......
  • Crockett v. City of Mexico, No. 30372.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1934
    ...intense physical agony and mental suffering." Hance v. United Rys. Co., 223 S.W. 123; Ellis v. Wahl, 167 S.W. 582; Doster v. Ry. Co., 158 S.W. 440; McCauley v. Brewing Co., 254 S.W. 868; Bona v. Luehrman, 243 S.W. 386; Bridges v. Dunham, 183 S.W. 703; Wilbur v. Rys. Co., 110 Mo. App. 689. (......
  • Jordan v. General Growth Development Corp., No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • July 10, 1984
    ...your argument, sir. Undoubtedly the comment by plaintiff's attorney was improper. Doster v. Chicago, Milwaukee & St. Paul Railway Company, 158 S.W. 440 (Mo.App.1913); City of Advance v. Maryland Casualty Company, 302 S.W.2d 28, 34 (Mo.1957); Stephenson v. American National Insurance Company......
  • Request a trial to view additional results
8 cases
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...legal and not equitable in character. Hutchinson v. Safety Gate Co., 247 Mo. 71; Flenner v. Cook, 221 Mo. App. 160; Doster v. Ry. Co., 158 S.W. 440; Moudy v. Dressed Beef & Provision Co., 149 Mo. App. 413. (b) Though it is true that equity had original jurisdiction in contribution growing o......
  • Stoutimore v. Santa Fe Ry. Co., No. 33227.
    • United States
    • United States State Supreme Court of Missouri
    • March 10, 1936
    ...verdict here is proper because the proof authorizes recovery against the company and the discharge of the conductor. Doster v. Ry. Co., 158 S.W. 440; State ex rel. Mersereau v. Ellison, 260 Mo. 129, 168 S.W. 744; Berkshire Lumber Co. v. Chick Inv. Co., 168 Mo. App. 342, 153 S.W. 1078; Mille......
  • Crockett v. City of Mexico, No. 30372.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1934
    ...intense physical agony and mental suffering." Hance v. United Rys. Co., 223 S.W. 123; Ellis v. Wahl, 167 S.W. 582; Doster v. Ry. Co., 158 S.W. 440; McCauley v. Brewing Co., 254 S.W. 868; Bona v. Luehrman, 243 S.W. 386; Bridges v. Dunham, 183 S.W. 703; Wilbur v. Rys. Co., 110 Mo. App. 689. (......
  • Jordan v. General Growth Development Corp., No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • July 10, 1984
    ...your argument, sir. Undoubtedly the comment by plaintiff's attorney was improper. Doster v. Chicago, Milwaukee & St. Paul Railway Company, 158 S.W. 440 (Mo.App.1913); City of Advance v. Maryland Casualty Company, 302 S.W.2d 28, 34 (Mo.1957); Stephenson v. American National Insurance Company......
  • Request a trial to view additional results

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