Flucks v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 02 November 1909
• Citation: 122 S.W. 348,143 Mo. App. 17
• Parties: FLUCKS v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

122 S.W. 348

143 Mo. App. 17

FLUCKS v. ST. LOUIS, I. M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

1. CARRIERS (§ 298) — DUTIES TO PASSENGERS.

It is the duty of railroads to operate their passenger trains so as to avoid unnecessary jars and lurches that may injure passengers while moving about in a car.

2. CARRIERS (§ 321) — ACTION FOR INJURIES TO PASSENGER — INSTRUCTIONS — "SAFE SPEED."

An instruction, assuming that the operation of a train around a curve "at an unusually high rate of speed" was negligent, is erroneous, as a speed may be safe, though unusual.

3. CARRIERS (§ 320) — ACTION FOR INJURIES TO PASSENGER — NEGLIGENT SPEED — QUESTION FOR JURY.

Whether the speed with which a train was run around a curve was dangerous and negligent is a question for the jury.

4. TRIAL (§ 296) — HARMLESS ERROR — INSTRUCTIONS — CURING ERROR BY OTHER INSTUCTIONS.

The error of an instruction presenting a wrong theory of the entire case is not cured by other instructions on the right theory.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Carl Flucks against the St. Louis, Iron Mountain & Southern Railway Company. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

Wright & Cutler, for appellant. E. L. Clardy and H. C. Herbel, for respondent.

GOODE, J.

This appeal was taken from an order allowing defendant a new trial on the ground of error in the first instruction granted for plaintiff. Before reciting the instruction, a summary of the facts of the case and a statement of the averments on which plaintiff sought to recover ought to be given. Plaintiff took passage on one of defendant's trains on December 5, 1905, at 8:30 p. m., at Union Station, in St. Louis, to go to Little Rock, Ark., and then to Morrillton, in the same state. The train was a fast one, known as the "Cannon Ball." It left the station on time, ran southward toward Carondelet, where, about 30 minutes after its departure, plaintiff was hurt by being thrown across the arm of a seat as he was placing his hat in an overhead rack. When he entered the coach, he found all the seats taken except a chair at the rear end and next to the aisle. The adjacent chair by the window was occupied by a gentleman named Denny, with whom plaintiff fell into conversation, not attempting, at first, to deposit his hat in the rack. As said, he did this about half an hour after leaving Union Station, rising to his feet, and leaning over Mr. Denny toward the side of the coach, for the purpose. His first attempt to lodge the hat in the rack failed in consequence of there being some other articles in the rack which left little room for the hat. He attempted a second time to place it there, reached upward, and, while in the act of depositing it, the train ran around a curve at a speed estimated by plaintiff and Denny to have been 40 or 50 miles an hour, whereupon the train gave a lurch, throwing plaintiff first to the right and then to the left, so that he fell across the arm of the chair on the opposite side of the car, and was hurt. He continued on his journey, suffering considerable pain, and there was evidence to prove one or two ribs were broken, evidence, too, which tends to prove a speed of 40 or 45 miles an hour where the accident happened would have been too high for safety, and would have caused the train to lurch considerably. The speed allowed at the curve where plaintiff testified the accident happened — that is, Ivory...