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

• Citation: 135 Mo. App. 222,115 S.W. 3
• Parties: GABRIEL v. ST. LOUIS, I. M. & S. RY. CO.
• Decision Date: 12 January 1909
• Court: Court of Appeal of Missouri (US)

115 S.W. 3

135 Mo. App. 222

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

St. Louis Court of Appeals. Missouri.

January 12, 1909.

1. CARRIERS (§ 318)—CARRIAGE OF PASSENGERS —PERSONAL INJURIES—EVIDENCE—NEGLIGENCE OF CARRIER.

In an action by a passenger for injuries caused by shoving a freight car violently against a car in which plaintiff was standing, the evidence held sufficient to make out a prima facie case of negligence by the carrier.

2. CARRIERS (§ 331)—CARRIAGE OF PASSENGERS —PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE.

Where a passenger in a mixed train knew the engine was switching, and seats were provided for passengers, and signs posted warning passengers of the danger of standing in the aisle, such passenger was charged with notice of the danger, and could not recover for injuries received while standing in the aisle, by reason of the sudden impact of the cars; and, even though he did not see the signs, if no signs were posted, his experience as a traveling salesman would be sufficient to impute to him knowledge of the danger.

3. COURTS (§ 95)—RULES OF DECISION—DECISIONS OF OTHER STATES.

In transitory common-law actions for injuries occurring in other states, the interpretation of a common law by the court of the state where the injury occurred will govern; and, if the party has no cause of action in that state, he has none anywhere.

4. COURTS (§ 95)—RULES OF DECISION—DECISIONS OF OTHER STATES.

In a passenger's action in Missouri for injuries sustained in an accident in Arkansas, the decisions of the Supreme Court of that state on the subject of contributory negligence in such actions will govern, and not the decisions in Missouri.

Appeal from Circuit Court, Madison County; Chas. A. Killian, Judge.

Action by R. J. Gabriel against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The defendant owns and operates a line of railroad running from Batesville to Newport, in the state of Arkansas. On September 18, 1906, a mixed train, consisting of one passenger coach and 12 box cars, was run over the road from Batesville to Newport. Plaintiff purchased a ticket at Batesville, which entitled him to passage to Newport, and entered the passenger coach. The train proceeded about 33 miles to Paroquet, a station on the road. Here the train crew cut the engine and two box cars from the train, and, leaving the remainder of the cars standing on the main track, proceeded to do some switching. Three freight cars were picked up on a siding and hauled on to the main track in the rear of the cars left standing thereon. The coupling of the forward one of these three cars came unfastened, and the three cars ran back and collided with the passenger coach with such force as to cause plaintiff, who was standing in the aisle, to fall on his back. He struck the corner of a seat, and was thrown to the floor. The fall resulted in bruises and nervous shock, and the action is to recover for these injuries. The petition alleges that by reason of said injuries plaintiff "has suffered great pain in mind and body and a severe nervous shock; that he has been for a long time, namely, for eight weeks, prevented from pursuing his usual avocation of a traveling salesman. Plaintiff says that by reason of the premises he has been damaged, by the wrongful acts of defendant aforesaid, in the sum of $3,000." The answer was a general denial and a plea of contributory negligence. The trial resulted in a verdict and judgment for plaintiff for $600, from which defendant appealed.

The collision between the passenger coach and the three cars that broke loose from the engine was described by Turnock, one of plaintiff's witnesses, as a "very violent collision"; by Hinton as "very much out of the ordinary, and unusual"; and the evidence shows that all persons who were standing in the aisle or on the platform of the car were injured by the force of the impact. Plaintiff testified that when the train stopped at Paroquet he felt chilly and walked around; that there was an altercation between the ticket auditor and a negro woman, and he started toward the door to listen to the talk, when there was a very violent collision, which seemed to lift him off his feet and threw him backward over the aisle and against the corner of a seat to the floor. Plaintiff then testified, over the objection of defendant's counsel, that the collision also injured several other people, other than himself, who were on the train. Plaintiff was helped from the floor by some of the passengers and placed in a seat, and carried to Newport, Ark., where he received medical attention from the company's physician. He also testified, over the objection of defendant's counsel that his average weekly earnings at that time were about $75. Plaintiff went from Newport to his home at Fredericktown, Mo., and was allowed by the court, over the objection of defendant's counsel, to state that the trip from Newport to Fredericktown caused him extreme pain and was severe on the wound. He also testified, over the objection of defendant's counsel, that, as the result of his injuries from that time up to the bringing of this suit, he had suffered considerable nervous shock, and had been unable to do his work as a jeweler; that he had been unable to write without hurting his eyes considerably, and had been unable to sleep soundly; and was also unable to write letters, owing to the severe nervous strain caused by this injury. On cross-examination plaintiff testified that the passengers who were injured were standing either in the aisle or on the platform at the time of the collision, except a little child, about four years old, who was injured while sitting down; that he did not see any warning sign against standing in the aisle or on the platform, and did not think there was one; that between...