Erwin v. Kansas, Ft. S. & M. Ry. Co.

• Decision Date: 29 April 1902
• Citation: 94 Mo. App. 289,68 S.W. 88
• Court: Missouri Court of Appeals
• Parties: ERWIN v. KANSAS, FT. S. & M. RY. CO.

68 S.W. 88

94 Mo. App. 289

ERWIN v. KANSAS, FT. S. & M. RY. CO.

Court of Appeals of St. Louis, Missouri.

April 29, 1902.

RAILROADS — FREIGHT TRAINS — INJURY TO PASSENGER IN CABOOSE — LIABILITY — DEMURRER TO EVIDENCE.

1. A railroad company is required to use the same degree of care in the operation of a freight train conveying passengers as in the operation of an exclusively passenger train.¹

2. A passenger on a freight train accepts his passage with knowledge of its inconveniences, and that it is not equipped with all the safeguards provided for passenger trains, and assumes the risk ordinarily incident to its operation.

3. More or less jerking and jolting being incident to the operation of a freight train, negligence cannot be inferred from the mere fact that a passenger thereon was injured from a jar occasioned by the sudden stopping of the train.

4. A passenger on a freight train was lying in the caboose on a seat running lengthwise of the car with his head towards the engine, and near the iron framework of the seat, and was hurt by the sudden stopping of the train. He testified that he did not know whether he was asleep or not; that when the stop was made his head struck the end of the iron frame of the seat, and he was thrown to the floor, and his head turned in the direction that his feet were when he laid down; that the conductor rushed out of the caboose, swearing at the engineer for making so sudden a stop, etc. In an affidavit made by him at the time of a medical examination the passenger testified that he was asleep at the time. The trainmen testified that the stop was not an unusual one, or made with unusual violence, etc. Held error not to sustain a demurrer to the evidence.

Appeal from circuit court, Howell county.

Action by D. P. Erwin against the Kansas, Ft. Scott & Memphis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. J. Orr, for appellant. A. H. Livingston, for respondent.

BLAND, P. J.

The material averments of the petition are that plaintiff was a passenger on one of defendant's freight trains and that, "while lying on the seat in the caboose of said train, below Marked Tree, in the state of Arkansas, the defendant, by its agents, servants, and employés in charge thereof, so carelessly, negligently, and unskillfully managed said train that it was stopped very suddenly, throwing plaintiff with great force, his head striking an iron brace on the seat on which he was lying, thereby fracturing plaintiff's skull," and that he was severely and permanently injured. The answer was: First, a general denial; second, that the stopping of the train was not unusual, and that jolting was incident to the stopping of that kind of a train; and, third, that, if plaintiff was injured, it was the result of his failure to use ordinary care. The facts are that J. R. Pinner, J. W. Stone, and plaintiff were residents of the state of Tennessee, and all men of families. Being desirous of removing to Howell county, Mo., they all appeared at Memphis, Tenn., on March 9, 1901, and jointly chartered a box freight car of the defendant, into which they loaded their household goods, chickens, and dogs, and four work animals, to be hauled by defendant to Willow Springs, in Howell county, Mo., a station on defendant's road. The freight contract entitled one of the shippers to transportation on the train hauling the car for the purpose of looking after the live stock of the shippers. The plaintiff was selected for this purpose, and at 8 o'clock p. m. on the 9th of March took passage at Memphis on a through freight train made up of the chartered car and 39 other freight cars, the engine, and caboose. After proceeding west about 36 miles, the engineer in charge of the train, at about 10:30 p. m., was signaled to stop. He slowed down his train until he reached the flagman, who boarded the engine while still in motion, and informed the engineer that there was a slide in the track a short distance ahead. The engineer pulled up slowly until within a few car lengths of the slide, when the train was stopped, and was held until the next morning, and until the track was repaired by the section men so that the train could pass in safety. Plaintiff testified that when the stop was made he was lying in the caboose on a seat running lengthwise of the car, with his head towards the engine, and near the iron framework at the end of the seat; that he did not know whether he was asleep or not; that when the stop was made his head struck the end of the iron frame of the seat, and he was thrown to the floor, and his head was turned in the direction that his feet were when he laid down; that the conductor was in the caboose, and rushed out of the door when the stop was made, uttering blasphemous epithets against the engineer for making so sudden a stop. In respect to his injuries the plaintiff testified that when the got up from the floor of the caboose his head hurt him; that he felt of it, and found a lump on the left side near the top of his head, and that his neck and back hurt him; that he was a farmer, and that he was unable to do scarcely any labor at all on the farm in the season of 1900, and suffered from pains in his head, back, and neck, and from nervousness; that he had improved some, but was still unable to perform much labor, and still suffered from pains in his head, back, and neck; that he made no complaint to the trainmen about being hurt while in the car, said nothing to any one about it until he had arrived at his destination; that after the lump went away there was a depression in his skull; that in May, 1901, he went to the defendant's local surgeon at Willow Springs, who examined his head, and wanted him to go to Kansas City to be examined and treated by defendant's chief surgeon, but he refused to do so, because he had no one to leave with his family. At the time this examination was made plaintiff made an affidavit in respect to the manner of his injury, the material parts of which are as follows: "I rode in the caboose. After we had gone some distance, I lay down on the seat in the caboose to get some sleep. This seat had a cushion, but whether it was upholstered with leather or rough cloth I do not remember. I think it was black. There was another passenger on the caboose besides me. He got on at Memphis, and left the train at Jonesboro, Ark. He was a middle-aged man, commonly dressed. I think he was a railroad man looking for a job; at least that is what he told me. This man also lay down in the caboose on the opposite side from me. When I laid down I laid with my head toward the engine. The other passenger laid with his feet toward the engine. This was the way we laid when I...