Frailey v. Kurn
| Decision Date | 05 May 1942 |
| Docket Number | 37827 |
| Citation | 161 S.W.2d 424,349 Mo. 434 |
| Parties | Lester E. Frailey, Jr., Appellant, v. J. M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of St. Louis County; Hon. Peter T Barrett, Judge.
Affirmed.
Wayne Ely, T. C. Derrick and Lloyd E. Boas for plaintiff.
(1) The court erred in giving the defendants peremptory instruction in the nature of a demurrer to the evidence at the close of the whole case. (a) Plaintiff's evidence is to be taken as true in determining its sufficiency. Tash v. St Louis-S.-F. Ry. Co., 76 S.W.2d 690, 335 Mo. 1148; Knight v. Wabash Ry. Co., 85 S.W.2d 392; Fink v Kansas City So. Ry. Co., 143 S.W. 568. (b) The evidence was sufficient to establish a prima facie case and should have been submitted to the jury. The evidence proved that the defendants' servants were grossly negligent in the manner in which they sought to eject the plaintiff from the fast-moving train. Fink v. Kansas City So. Ry. Co., 143 S.W. 568; Farber v. Mo. Pac. Ry. Co., 40 S.W. 932, 139 Mo. 272; Kimbrow v. Fort Worth & Denver City Ry. Co., 86 S.W.2d 78; B. J. Bjornquist v. Boston & A. R. Ry. Co., 250 F. 929; Toledo, St. L. & W. R. Co. v. Gordon, 143 F. 95. There was evidence showing that the defendant saw the appellant in a perilous position in time to have avoided injuring him. Carpenter v. Kurn, 136 S.W.2d 997, 345 Mo. 877; Leach v. St. Louis-S. F. Ry. Co., 48 F.2d 722; State ex rel. Fleming v. Bland, 15 S.W.2d 798. (c) Where the evidence and all reasonable inferences to be drawn therefrom in favor of plaintiff, presents a question of fact, the plaintiff is entitled to a jury trial. Whiteaker v. Chicago, R. I. P. Ry. Co., 160 S.W. 1009, 252 Mo. 438; Fink v. Kansas City So. Ry. Co., 143 S.W. 568.
E. H. Nahler, A. P. Stewart and A. E. L. Gardner for respondents.
(1) It is conceded that plaintiff was a trespasser at the time and place in question by climbing upon defendants' freight train in violation of Section 4795, Revised Statutes of Missouri 1939, and therefore defendants owed plaintiff no duty except not to willfully and wantonly injure him after his imminent peril was actually discovered by the employees operating said freight train. Sec. 4795, R. S. 1939; Hall v. Railroad Co., 219 Mo. 553, 118 S.W. 56; Decoulombier v. Baldwin, 101 S.W.2d 96; Baker v. Wood, 142 S.W.2d 83; State ex rel. v. Trimble, 300 Mo. 92, 253 S.W. 1014; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Stewart v. Mo. Pac. Railroad Co., 308 Mo. 383; Barney v. Ry. Co., 126 Mo. 372; McCoy v. Home Oil & Gas, 60 S.W.2d 715; Sheppard v. Railroad Co., 335 Mo. 606, 72 S.W.2d 985. (2) A place of imminent peril is not meant a place wherein there is just a mere bare possibility of an injury occurring. It means a place wherein there is certain danger. Wallace v. St. Joseph Ry. Co., 336 Mo. 282, 77 S.W.2d 1011; Branson v. Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Swain v. Anders, 140 S.W.2d 730; Stewart v. Mo. Pac. Railroad Co., 308 Mo. 383. (3) Plaintiff, being a trespasser upon the freight train of defendants, and having voluntarily alighted therefrom, receiving the injury complained of, cannot invoke the humanitarian doctrine in his suit against defendants for his injuries. Stewart v. Mo. Pac. Railroad Co., 308 Mo. 383; State ex rel., Vulgamott v. Trimble, 300 Mo. 92. (4) Plaintiff relies upon his own testimony to prove certain substantive facts necessary to authorize the submission of the case to the jury upon the humanitarian doctrine, which facts are wholly within the knowledge of plaintiff and not supported by the testimony of any other witness. Having given two different versions of the accident involving these facts, plaintiff's testimony is admittedly contradictory, conflicting and mere guesswork, and the jury should not be permitted to speculate or guess which statement of plaintiff should be accepted. Swain v. Anders, 140 S.W.2d 730; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Roehl v. Ralph, 84 S.W.2d 405; Seitz v. Hudson, 106 S.W.2d 523. (5) Plaintiff, being a trespasser upon the freight train in question, assumed the risk of injury from the situation which confronted him in any position in which he voluntarily placed himself while riding upon said train. Blavatt v. Union Electric L. & P. Co., 335 Mo. 151, 71 S.W.2d 736; Karr v. Rock Island Ry. Co., 341 Mo. 536.
Bohling, C. Westhues and Barrett, CC., concur.
Lester E. Frailey, Jr., instituted this action against J. M. Kurn and John G. Lonsdale as trustees of St. Louis-San Francisco Railway Company to recover $ 75,000 damages for personal injuries sustained while stealing a ride on one of defendants' trains. Cast at the close of the evidence, plaintiff appealed.
Plaintiff and several companions in plaintiff's automobile were at Pevely's Dairy, Gore avenue and Big Bend road, Webster Groves, Missouri, about three o'clock on the afternoon of September 4, 1936, when a westbound Frisco train came by. Plaintiff was eighteen years of age, had good vision, was a high school graduate and had been active in athletics, having played football, basketball, and baseball at the Webster Groves high school. The first scheduled stop of the train was Pacific, Missouri, twenty-two miles distant. It had seventy-five cars. It was about three-fourths of a mile long the cars being about sixty feet in length. Immediately back of the tender were sixteen coal cars, with boxcars, coal cars, and tank cars to the rear of the train. A brakeman, Leroy Umlauf, was riding the top of the first boxcar, the seventeenth car of the train. On the sides of the boxcars, near the end, were handholds, iron rungs, forming a ladder extending from the bottom to the top of the car, and underneath the frame of the car on the side was a stirrup. The boxcars had nine such rungs while the coal cars had six. The ends of the cars have a short ladder of three or four rungs, but no stirrup. These handholds are about twenty-four inches wide, and those on the end come within about two inches of the side of the car and are about two and a half feet from the coupling. The train was moving slowly and some of the young men decided to ride the train to Kirkwood, three miles distant, plaintiff telling Robert Mier to drive plaintiff's car to Kirkwood and meet them. Plaintiff, Jimmy Martin, and Harry Nabors "hopped" the train. Nabors rode a short distance and got off but plaintiff and Martin remained on the train. They got on to the rear of the brakeman. Plaintiff testified he got on first, hopping the rear north ladder of a boxcar; and that there was one boxcar between him and Martin, who caught the north front ladder of a boxcar. When the train reached Kirkwood it was traveling too fast for them to get off, plaintiff testifying it was traveling thirty-five to forty-five miles an hour. Crescent is approximately thirteen miles west of Kirkwood on the Frisco railway. After passing Kirkwood, Martin moved from the ladder on the side of the car to the ladder on the end of the car, he testified, on account of the wind and was between the two cars. Plaintiff continued to ride the ladder on the side of the boxcar. The track had a number of curves in it; and the only evidence of record on the point is that from one and a half miles east of Crescent to approximately one thousand feet west of Crescent the train was moving up grade. Plaintiff testified: About a mile, or a minute or two before the train reached Crescent, it went around a curve of which plaintiff was on the inside. He testified: He testified the brakeman was three car lengths ahead of him, he did not remember the brakeman saying anything, could not have heard if he had, and that nothing was thrown at him. Plaintiff was then between the ends of two boxcars, standing, he thought (he didn't know) on something that was more or less an iron plate, when suddenly his right foot slipped between the coupling, slipped "into some crevice or some crack," and "the coupling came together and my foot was pinched;" he didn't have any idea how it was crushed. Plaintiff did not look down but pulled his foot away. ...
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