Dougherty v. Missouri R.R. Co.

• Decision Date: 30 April 1884
• Citation: 81 Mo. 325
• Parties: DOUGHERTY v. THE MISSOURI RAILROAD COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

81 Mo. 325

DOUGHERTY

v.THE MISSOURI RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1884.

Error to St. Louis Court of Appeals.

AFFIRMED.

Dyer, Lee & Ellis for plaintiff in error.

It was incumbent on plaintiff to establish, by affirmative proof, that the defendant was guilty of negligence or want of care and diligence. Schultz v. Railroad Co., 36 Mo. 32; Nolens v. Sickel, 3 Mo. App. 300, 308; Ward v. Andrews, 3 Mo. App. 275; Boland v. Railroad Co., 36 Mo. 84; Harlan v. Railroad Co., 65 Mo. 22; Thompson on Carriers of Passengers, 195; Hutchinson on Carriers, 616, 618; Hammack v. White, 11 C. B. (N. S.) 594. The proof in this case is limited to the fact that the car started with a sudden jerk, but by reason of what force, or by whose direction, the record is wholly silent. The same degree of care is not required of the carriers of passengers upon street cars drawn by horses as of railroads, whose cars are drawn by steam. Umber v. Street R. R. Co., 6 Rob. 327; s. c., 51 N. Y. 497; Feital v. Railroad Co., 109 Mass. 398; 2 Waite's Actions and Defenses, p. 71; Curtis v. Railroad Co., 18 N. Y. 536; Brehm v. Railroad Co., 34 Barb. 256, 268. The petition does not state a cause of action. Lee v. Manufacturing Co., 6 Mo. App. 578; Wildes v. Railroad Co., 29 N. Y. 325; Railroad Co. v. Marcott, 41 Mich. 435; Aldener v. Railroad Co., 37 Ia. 264, 272; Railroad Co. v. Keely, 23 Ind. 138; Railroad Co. v. Taffe, 11 Ind. 458; Eldridge v. Railroad Co., 1 Sandf. 39; Ware v. Gay, 11 Pick. 106.

McComas & McKeighan for defendant in error.

It is a duty which the carrier owes a passenger, to use the utmost care and prudence in the management of cars and vehicles, and when an accident happens, and the passenger is injured, it is for the defendant to show that it was at the time in the full discharge of its duty toward the passenger. Stokes v. Saltonstall, 13 Pet. 181; Railroad Co. v. Pollard, 22 Wall. 341; Christie v. Griggs, 2 Camp. 79; Lemon v. Chanslor, 68 Mo. 340.

PHILIPS, C.

This is an action to recover damages for personal injury. After the requisite preliminary statements, the petition avers:

“That on or about the 8th day of April, 1877, the said plaintiff, for a certain consideration and reward, agreed to be paid by him to the defendant, was a passenger on one of the said defendant's cars on said line of railroad, and was exercising reasonable care and diligence, when the said defendant, its agents, servants and employes, diregarding its and their duty to the plaintiff as such passenger, so carelessly, unskillfully and negligently managed and operated said car on said line, that the said plaintiff was suddenly and violently thrown down and against the side of the said car, and his left hand and arm thrown against and through one of the windows of the said car, whereby his hand was cut, bruised and lacerated, and the plaintiff states, that as the result of said carelessness, negligence, unskillfulness, and injuries, he has ever since been hurt and sick, and by reason thereof suffered, and still suffers great pain and anguish, and on account thereof, has been compelled to have, and has had his hand and a portion of his said arm amputated and cut off, whereby he has become permanently disabled,” etc. These allegations were put in issue by the answer.

The trial was had before a jury. At the conclusion of plaintiff's evidence the court gave an instruction in the nature of a demurrer to the evidence, whereupon the plaintiff took a nonsuit with leave, etc. On writ of error to the court of appeals, this judgment of the circuit court was reversed. The defendant has brought the case here on writ of error to the court of appeals.

The plaintiff's evidence showed substantially, that about the 18th day of April, 1878, he and one McCreary approached defendant's street car on Olive street, in the city of St. Louis, between Fourth and Fifth street, for the purpose of taking passage to go home. The car stopped to admit them. Plaintiff boarded it a little in advance of McCreary. It was raining at the time, and plaintiff had an umbrella in his hand which he closed as he entered the car. The seats on the north side of the car were about full; on the south side there was one lady and perhaps another passenger. Plaintiff moved rapidly forward, about half way the length of the car, and was just in the act of turning around to take a seat on the south side, when the car started forward with a violent jerk, upsetting him. He dropped the umbrella to catch the strap, but failed to reach it. To save himself he caught or placed his left hand against the window, but his fall was so violent that his hand crashed through the window up to his shoulder. McCreary helped to extricate his arm. His hand was badly cut. He and McCreary then left the car and went to the nearest drug store and had his hand dressed. Physicians attended on him. His hand grew worse and finally had to be amputated on the 19th of July following. He knew from traveling on the cars that straps were provided for supporting passengers when standing, etc.

McCreary testified that he had reached the door of the car at the time of the sudden start; that the jerk was unusual and so violent that it threw him against the doorfacing, which he caught. Neither of these parties saw the driver or the horses, and only judged that they started the car from the movement forward.

One Jarret, who had been a street car conductor and driver on this road, testified, as to the manner of managing and starting such cars. The cars have wheels and brakes. The brake is used for stopping and starting the car in conjunction with the horses pulling it. The driver is supposed to hold the brake until the car is started smoothly. The team is managed by reins, which the driver holds firmly with one hand and the brake with the other. That by care, etc., the driver so manages the team and the brake as to start the car smoothly. Physicians testified as to the treatment of plaintiff's wound, and the character of the injury, etc.

I. The opinion of the court of appeals in this case, (9 Mo. App. 478,) is a satisfactory exposition of the law as applied to the facts in evidence. It would be unnecessary repetition to review the authorities discussed.

Defendant's counsel insist that we review the opinion, because the authorities declare that the injury must result from the negligence and fault of the defendant, and it is incumbent on the plaintiff to show affirmatively the immediate connection between the injury and the misconduct of the carrier. The argument is, that there is no direct proof that the sudden movement of the car was occasioned by any act of the driver or team; that from aught that appears the...