Furnish v. Missouri Pac. Ry. Co.

• Citation: 102 Mo. 438,13 S.W. 1044
• Parties: FURNISH et ux. v. MISSOURI PAC. RY. CO.
• Decision Date: 30 June 1890
• Court: Missouri Supreme Court

13 S.W. 1044

102 Mo. 438

FURNISH et ux. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 30, 1890.

CARRIERS — INJURY TO PASSENGER — DAMAGES.

1. A railroad company is liable to a passenger for slight negligence, and is bound to furnish a reasonably safe and sufficient track, rolling stock, and service, so far as can be provided by the utmost human skill, diligence, and foresight, which is such skill, diligence, and foresight as is exercised by a very cautious person; but it does not insure safety.

2. The fact that a railway car ran off the track, causing an injury to a passenger, is evidence of negligence, which, if unexplained, will justify a recovery; and it is not substantial error to charge that it shifts to the carrier the burden of proof that the injury did not occur through any omission to discharge its legal duty.

3. A woman 53 years old, a passenger on defendant's railway, was injured in a wreck. There was a great deal of tenderness in the small of the back, but no external evidence of injury, except that in a day or two there was some discoloration. She had suffered a great deal from the injury, been unable to walk or attend to any of her household duties, and would probably be unable to walk for a long time, and always have a weak back. Seven years before she had been in delicate health for two or three years, and to within two years of the accident she had had attacks of neuralgia, often complaining of her back. $15,000 damages were awarded. Held excessive, and set aside, unless the sum of $5,000 be remitted.

Appeal from circuit court, Bates county; D. A. DE ARMOND, Judge.

This was an action brought by Martha A. Furnish, being joined therein by her husband, to recover of defendant damages for injuries sustained by her while a passenger on one of defendant's cars. It appeared in evidence that on the 6th of February, 1886, she took passage on an accommodation train, consisting of a locomotive and a tender, a baggage-car, and two passenger coaches, at Independence, Mo., intending to go to Kansas City. When the train arrived within a mile and a half of Kansas City the locomotive and all the cars left the track on an embankment, and, after leaving the rails, the train tipped over and rested on its side. The plaintiff introduced evidence tending to prove that at the point where the locomotive left the track a number of ties were broken off and splintered, (some of them were decayed and rotten,) and that the tire of one of the drive-wheels, which had been placed thereon shortly before the accident, was three-eighths of an inch thicker than the one upon the companion drive-wheel, and that the difference in thickness had been called to the attention of defendant's assistant master mechanic, while the locomotive was in the repair shop, shortly before the accident. The effect of this difference was to make one drive-wheel larger than the other. There was evidence that the south rail at the point where the locomotive left the track was bent inwardly towards the north rail. Defendant introduced evidence tending to show that the ties, at the point where the train left the track, were sound ties, capable of holding the spikes; that the track at that point had been inspected daily for a long time; that it had been inspected two hours before the accident occurred; and that there was nothing to indicate any defect in the track or road-bed. Defendant also gave evidence tending to prove that the engine was inspected by the engineer immediately before it left Independence on that trip, and it was found in perfect condition as far as he could discover. The master mechanic, assistant master mechanic, and engineer of defendant all testified that the difference in the thickness of the tire would have no effect upon the safety of the locomotive, nor any tendency to throw it from the track. The assistant master mechanic denied that his attention had been called to the difference in the thickness of the tire by the witness who testified he had done so, and further testified that the latter had nothing to do with the engine when it was in the shop for repairs. Plaintiff's evidence as to her injuries was that after the car in which she was riding was derailed, she was found lying in the top of the car, with her feet through a window, and a cushion across face. She was taken out of the wreck, and placed upon some cushions, and afterwards removed to an hotel in Kansas City, where she remained for 25 days. She was examined by a physician the afternoon of the accident. He testified that he found a great deal of tenderness in the small of the back, increased pain upon pressure, radiating from several inches around the point of injury, with increased sensibility of the limbs, and that she was suffering a great deal from the fall. At that time there was no external evidence of an injury, but in a day or two afterwards there was some discoloration along the back and side. After her return home he saw her several times, and found her but little improved. The evidence of her family physician was to the effect that he had known and prescribed for her since 1879; considered her in delicate health for two or three years from that time, and up to within two years she had had attacks of neuralgia, often complaining of her back, but for 18 months prior to her injury he had not prescribed for her; that her injuries had rendered her an invalid, unable to walk or attend to any of her household duties; and that he believed she would be unable to walk for a long period. On cross-examination he testified that in his opinion her spinal cord was not injured by the accident; that she had no indications of paralysis; and that she would probably in time recover so as to get around, but would, in all probability, always have a weak back. Another physician, called as an expert, testified that he had seen her twice, — the first time in April, 1886, and the second time a week before the trial; that in some respects she had improved, in others not; that he believed her injuries were permanent, but that the probabilities were that she would get better; that she had got better. Testimony was given by non-professional witnesses that she had not been able to walk prior to the trial.

At the close of the evidence the court, of its own motion, gave the following instructions to the jury, without objection or exception by either party, viz.: "(a) If the jury believe from the evidence that, at the time said train was overturned, the employes of defendant were exercising, and had exercised, the highest practicable care, caution, and diligence, which capable and faithful railroad men would exercise under similar circumstances, and that the train ran off, or was thrown from, the track, and was overturned by causes or a cause unknown to the defendant, its agents, and servants, and which could not have been discovered by them, and the causes or cause of the accident removed or counteracted by the exercise of the aforesaid care, caution, and diligence, then the plaintiffs cannot recover in this action, and the verdict should be for the defendant. (b) The jury are instructed that although they may believe from the evidence that some of defendant's ties on its road-bed were decayed or rotten, as described by some of plaintiff's witnesses, yet they should not find a verdict for plaintiffs on this ground if they believe from the evidence that such condition of said ties did not cause the train to be thrown from the track, and plaintiff Martha A. Furnish to be injured, as complained of in the petition. (c) The court instructs the jury that although they may believe from the evidence that one of the drive-wheels of the locomotive, which was hauling the train in question, had been re-tired, and that the new tire had not been turned down, yet they cannot find for plaintiffs on this ground, unless it appears from the evidence that it was necessary to have the same turned down, to render it fit and proper to be used to avoid accident; nor can they find for plaintiffs on this ground if it appears from the evidence that the injury complained of did not result from defendant's failure to have said tire turned down."

Furthermore, the following instructions were given at the instance of plaintiff, viz.: "(d) The court instructs the jury that if they believe from the evidence that the defendant corporation was engaged in the business of transporting passengers for hire upon a railroad operated by it, then the law denominates the defendant a common carrier; and it was bound to provide a reasonably safe track and road-bed, and reasonably safe and stanch road, worthy cars and engines, and careful employes to manage the same, so far as human skill, diligence, and foresight could provide; and is responsible for all injuries resulting from slight negligence on the part of itself, its agents or servants. If, therefore, the jury believe from the evidence that on or about the 6th day of February, 1886, the plaintiff Martha A. Furnish took passage on the cars of the defendant, and that said car, while said Martha A. Furnish was a passenger thereon, ran off the track of defendant's railroad, and fell down the embankment thereof, and the plaintiff Martha A. Furnish, without fault or negligence on her part, was thereby injured, then it rests on the defendant to prove to your satisfaction that said car, the engine drawing the same, the machinery by which it was operated, and the road-bed, track, and ties of the road, at the place of derailment, were reasonably safe and sound, so far as human skill, diligence, and foresight could provide, and that said accident was caused by inevitable accident or defects in said car, engine, machinery, road-bed, track, and ties that could not have been seen, detected, or known to the defendant, its agents, or servants, by the exercise of the utmost human skill, diligence, and foresight. (e) The court instructs the jury that if they believe from...