Ferguson v. St. Louis & S. F. R. Co.

• Decision Date: 04 March 1907
• Citation: 123 Mo. App. 590,100 S.W. 537
• Court: Missouri Court of Appeals
• Parties: FERGUSON v. ST. LOUIS & S. F. R. CO.

100 S.W. 537

123 Mo. App. 590

FERGUSON v. ST. LOUIS & S. F. R. CO.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

1. TRIAL—DEMURRER TO EVIDENCE—DETERMINATION.

In passing on a ruling sustaining a demurrer to the evidence at the close of plaintiff's case, the evidence and every reasonable deduction to be drawn therefrom which tends to support the cause of action must be considered as true, and every reasonable inference to be drawn from the testimony must be in plaintiff's favor.

2. CARRIERS — INJURIES TO PASSENGER — ACTION—QUESTION OF LAW.

Though, where a passenger is injured by reason of a defect of an appliance, the presumption of negligence of the carrier arises, where the plaintiff's evidence showed, not only that the wheels of a car were broken and defective, but also that the defect was such that it could not have been detected by precaution, the court properly sustained a demurrer to the evidence.

Appeal from Circuit Court, Gasconade County; R. S. Ryers, Judge.

Action by J. L. Ferguson against the St. Louis & San Francisco Railroad Company. Judgment in favor of defendant, and plaintiff appeals. Affirmed.

Harry Clymer and R. A. Breuer, for appellant. L. F. Parker and Woodruff & Mann, for respondent.

BROADDUS, P. J.

The plaintiff's suit is to recover damages for injuries received while a passenger on defendant's railroad. The train on which plaintiff was a passenger was a mixed train, composed of two cars loaded with iron ore and one passenger coach; the two former being in front of the latter. The cars loaded with ore, immediately in front of the passenger coach, were both derailed and overturned, and the plaintiff was injured. The evidence showed that the derailment was caused by a break in a flange of one of the wheels of a car loaded with iron ore. It was shown that there had been no inspection of the car, and that the defect in the flange was the result of a flaw in the iron. The conductor, who was introduced by the plaintiff, testified that about 15 or 18 inches of the flange were broken off, and that he made no particular examination of the defect. Defendant's car repairer and inspector, Marion Plank, was introduced by plaintiff, who testified on his examination in chief that the break was caused by a flaw in the iron that "could hardly be detected until it broke off entirely," and that he had never seen the car previously. On cross-examination he stated that it was a clear break in the iron, and could not have been discovered by the usual manner of inspection, and that such defects occur occasionally, and that they cannot be discovered by inspection. The grounds alleged for a cause of action are that defendant "negligently caused to be placed in said train, and to form a part thereof, a certain car which was then and there at the time in a worn, broken, unsafe, and defective condition and unfit for service on account of its worn, broken, unsafe, and defective condition, and was then and there out of repair, and the wheels of which were then and there worn, broken, unsafe, and defective," and that by reason of such defects the train was derailed and plaintiff injured. At the close of plaintiff's evidence the court at the request of defendant directed the jury to return a verdict in its favor, whereupon plaintiff took a nonsuit. The plaintiff then filed a motion to set the nonsuit aside, which the court overruled. The plaintiff brings his case here on appeal.

The plaintiff's premises are that, "in passing on the action of the court in sustaining the demurrer to the evidence at the close of his case, the evidence and every reasonable deduction to be drawn therefrom which tended to support the cause of action must be considered as true, and every reasonable inference to be drawn from the testimony must be in plaintiff's favor." This is a correct statement of the law. Buckley v. Kansas City, 156 Mo. 16, 56 S. W. 319; Baxter v. St. Louis Transit Co., 103 Mo. App. 597; 78 S. W. 70; Ladd v. Williams, 104 Mo. App. 390, 79 S. W. 511. In furtherance of his premises, plaintiff contends that the evidence established that he was a passenger on defendant's cars and was injured, without fault on his part, by the derailment of the car in which he was riding, and that, therefore, he made out a prima facie case. It is the law that, where a passenger has been shown to have been injured by reason of some defect or imperfection of the appliance or by some omission of duty or negligent...