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

• Decision Date: 19 December 1921
• Docket Number: No. 22186.,22186.
• Court: Missouri Supreme Court
• Parties: ELLIOTT v. CHICAGO, M. & ST. P. RY. CO. et al.

236 S.W. 17

ELLIOTT v. CHICAGO, M. & ST. P. RY. CO. et al.

No. 22186.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Beulah Elliott against the Chicago, Milwaukee & St. Paul Railway Company and the Director General of Railroads. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded as to Director General.

Fred S. Hudson, of Kansas City, and J. D. Allen, of Chillicothe, for appellants.

Frank W. Ashby, of Chillicothe, A. G. Knight, of Trenton, and Miles Elliott, of St. Joseph, for respondent.

RAGLAND, C.

Suit for personal injuries. The petition alleges in substance that, on or about the 20th day of July, 1918, plaintiff was a passenger on one of defendants' trains running from Chicago, Ill., to Kansas City, Mo.; "that defendants, their agents and servants so negligently and carelessly maintained, conducted, and operated defendants' cars, train, and railroad upon which plaintiff was a passenger that plaintiff was thrown with great force and violence against the car in which she was a passenger, and against the seats and parts of said car," thereby inflicting upon her certain physical injuries, and causing a miscarriage of the child with which she was then pregnant. There were farther allegations of a negligent failure on the part of defendants to furnish plaintiff reasonable medical aid and attention following her alleged injury but this charge of negligence was abandoned at the close of the trial.

The railway company pleaded as a defense the possession, control, and operation of its line of railroad by the Director General of Railroads at the time of the alleged injury. The Director General answered by a general denial.

On the part of plaintiff the evidence tended to show: About 6 o'clock In the evening of July 19, 1918, plaintiff boarded one of defendants' trains at Chicago for Kansas City, en route to Fairfax, Okl., near which Place she resided with her husband on a farm. She was 20 years of age, in good health, weighed 155 pounds, and was five, feet and seven inches in height. She was then pregnant with her first child and about seven months of the period of gestation had been accomplished. The train upon which she took passage was known as the "Southwest Limited," a fast through train from Chicago to Kansas City, making but few stops. She rode in the "day coach," which was equipped with the seats ordinarily used in such passenger cars. Directly in front of where she sat, and with only five or six seats Intervening, was the ladies' toilet and the drinking water container. She was traveling alone, knew no one on the train, and sat by herself.

With, respect to the casualty of which she complains, plaintiff testified as follows:

"Q. What, if anything, unusual happened during the night? A. Well, should think it was about 12 o'clock in the night; however, don't know—we had stopped, and I had gone forward to get me a drink of water, and was on my way returning to my seat, and there was a sudden starting or moving of the train, an awful jolt and jar, and it threw me against the side of the seat very hard, and I was just ready to turn into the seat, and I grabbed something or would have fallen to the floor.

"Q. What about your grip—what kind of a grip did you have? A. I only carried a traveling bag, and I had my drinking cup in it and before I went to get a drink I sat the grip up on the seat and left it sitting there, and the jar was so hard that it threw it out on the floor.

"Q. Did the grip fall on the floor, or was it thrown on the floor? A. It was thrown on the floor by the jar of the train.

"Q. State whether or not you had ridden on trains before that'? A. Yes, sir; I had ridden on the train a lot; I had not taken so many long trips, but I had been on the train a good deal.

"Q. State whether or not you have ridden on the train some since then? A. Yes, sir; I have.

. "Q. You came from Kansas City out here? A. Out here, and from here to Kansas City, and from there to Wichita, and from there home, and from there up here, and that was the worst jar I ever witnessed on the train in my life—

"Q. Tell the jury how this jar was as to being a common or ordinary jar or an unusual jar; describe it best you can to the jury. A. Well, it was a very hard and a very unusual jar."

According to her further testimony: When plaintiff was "thrown" against the side of the seat she was struck in the abdomen, and shortly afterward began having pains. The conductor came through the car, and she told him that she had had a fall, and was having severe cramps; she requested him to bring a doctor. The conductor canvassed the train, but was unable to find a physician. He procured some whisky and gave it to her. This relieved her temporarily, but the pains soon returned, and she became very sick. About 5 o'clock in the morning when the train was near Chillicothe, Mo., she went to the ladies' toilet, thinking that she was going to have a bowel movement. While using the toilet the miscarriage occurred. The train arrived at Kansas City at about 8:30; she was helped from the train, put in an invalid's chair, and taken to the emergency hospital in the station. She remained there long enough for an ambulance to be called, where she was removed to the General Hospital. She was kept in the hospital nine days; after her return home she' still had hemorrhages; these continued for two months, during which time she was weak and nervous, and unable to eat or sleep.

Plaintiff further testified that she had since given birth to another child, which at the time of the trial in January, 1920, was seven months old, and that her own health then was reasonably good.

A physician called by plaintiff testified that the occurrence on the train as described by her would have been an efficient cause of her miscarriage. On this testimony and her own, plaintiff rested her case.

Defendants' evidence: The conductor, in passing through the car some time before the train reached Chillicothe, noticed that plaintiff seemed to be in pain, and stopped and said to her, "You don't seem to be feeling well." She told him she was suffering from cramps, and asked him to bring a doctor. He went through the train, but was unable to find one. When he came back he noticed evidences of a hemorrhage; he found some brandy, and brought it to her, and she drank it. Later he came back through the train, and in response to his inquiry she said she was feeling better. After the train left Chillicothe the plaintiff was apparently still in distress. The conductor took a Mrs. Maloney who got on at that station to plaintiff, and said: "Now, here is a woman that I know; she is an employé's wife, and she is reliable, and there may be something that you cannot tell a strange man that you can tell a woman." Mrs. Maloney, who remained in attendance on the plaintiff until the train arrived at Kansas City endeavored to find out the nature and cause of her trouble. The only information, however, that plaintiff gave her was that she had cramps. Just before reaching Kansas City the conductor brought plaintiff a light breakfast which she ate, and voluntarily paid for. Mrs. Maloney was of the opinion that plaintiff was about to be confined, and so reported to the conductor. For that reason the latter procured an invalid's chair and attendants and had her taken to the railroad emergency hospital at the station.

Both Mrs. Maloney and the conductor testified that plaintiff at no time complained or said that there had been a jerk or jar of the car, or that she had had a fall, or that she had been hurt in any way. At the railroad emergency hospital, and again at the General Hospital, plaintiff was interrogated as to the nature and cause of her illness, and she did not at any time, while in either place, according to the testimony of the attendants, intimate that she had received an injury on the train. This was in effect the testimony of the matron and two maids at the emergency hospital, and of the physician in charge and an interne and a nurse at the General Hospital.

The conductor and other members of the train crew testified that there was no "rough handling" of the train, and that no unusual jerk or jar occurred. The conductor further testified:

"Q. On that train tell the jury whether or not there was any lurching or jerking of that train that night sufficient to have thrown a person that was standing in the aisle ready to turn in their seat, down into the aisle or floor of the train? A. No, sir.

"Q. Or throw them off a their feet? A. No, air.

"Q. If there had been any such jerking or lurching as that, would you have noticed it? A. We would notice the rough handling.

"Q. Do you make any reports of that? A. Yes, sir; that is almost a crime on that train, rough handling."

Cross-examination:

"Q. Mr. McHarg, this `Southwest Limited' train that Mrs. Elliott was on, and on which you were conductor that night, is the crack passenger train on the Milwaukee railroad? A. Well, it is down this way, on the Kansas City division.

"Q. And any jar or jolting of that train sufficient to throw a passenger down is a very unusual and extraordinary jar for that train, isn't it? A. Very much so."

The body of the dead infant was found on the side of the track about a mile north of Chillicothe. Defendants introduced expert evidence tending to show that, as it appeared to be that of a perfectly developed child, the period of gestation must have been nearly, if not quite completed, and that when such stage of pregnancy is reached a long ride on a railroad train under the most favorable circumstances is of itself sufficient to cause a miscarriage or premature birth.

Plaintiff, in rebuttal, said that she did not remember seeing at the emergency hospital in Kansas City the two maids that testified in the case, and she denied that she told them that she did not know the cause of her...