Gibler v. Quincy, O. & K. C. R. Co.

• Decision Date: 04 February 1908
• Citation: 107 S.W. 1021,129 Mo. App. 93
• Court: Missouri Court of Appeals
• Parties: GIBLER v. QUINCY, O. & K. C. R. CO.

107 S.W. 1021

129 Mo. App. 93

GIBLER v. QUINCY, O. & K. C. R. CO.

St. Louis Court of Appeals. Missouri.

February 4, 1908.

1. MASTER AND SERVANT—INJURIES TO SERVANT—PLEADING—VARIANCE.

In an action by an employé against a railroad company for injuries alleged to have been caused by defendant's negligence, the essence of the charge being that the crew of a train, particularly the engineers, carelessly permitted the train to become uncoupled, severing the connection of the air brakes, thereby causing a sudden shock, which threw plaintiff to the ground, a discrepancy between the petition charging that the engines became uncoupled and the proof indicating the separation occurred behind the engines and between two of the cars was immaterial.

2. SAME—QUESTION FOR JURY.

In an action for injuries received by plaintiff while in defendant's employ, by being thrown from defendant's construction train on which he was riding, evidence considered, and held that defendant's negligence was a question for the jury.

3. NEGLIGENCE—INSTRUCTIONS.

An instruction submitting to the jury three charges of negligence made in the petition, when there was no evidence as to two of the charges, gave defendant no ground for complaint, where such instruction was drawn in the conjunctive, and required the jury to find defendant guilty of all the acts of negligence charged as a condition of a verdict for plaintiff.

4. MASTER AND SERVANT—INJURIES TO SERVANT—INSTRUCTIONS.

In an action by a servant for injuries from being thrown from defendant's train, an instruction that, if the jury believed the car on which plaintiff was riding was furnished by defendant, and was a car on which plaintiff and the other carpenters and bridge builders were accustomed to ride, with the consent of the foreman, while going to and from their work, and said car was as safe as the dining car, then plaintiff had a legal right to ride on said car, and by doing so was not guilty of contributory negligence, was erroneous, as unduly emphasizing certain facts in evidence which bore on the issue of contributory negligence, and leaving out of sight other facts just as important.

5. SAME—CONTRIBUTORY NEGLIGENCE.

A general custom, tolerated by an employer or consented to by its foreman, under which members of a crew rode on flat cars instead of in the dining car of a work train, would not be decisive in all cases of the question whether an employé was careless in taking a position on a flat car.

6. TRIAL—INSTRUCTIONS—EMPHASIZING CERTAIN FACTS.

Instructions which single out facts for emphasis, or leave out of view other relevant facts, are erroneous.

7. EVIDENCE—EXPERT TESTIMONY.

In an action for personal injuries, if a physician can form no opinion of plaintiff's present state, without considering the history of the case and prior symptoms as related by plaintiff, his opinion is incompetent.

8. SAME—DECLARATIONS.

In an action for personal injuries, no testimony should be received regarding what plaintiff said to physicians concerning his past suffering.

9. SAME—EXPERT TESTIMONY.

In an action for personal injuries, it was proper for a physician to state on the witness stand his opinion, based on what plaintiff said about the pain he felt at the time of the examination, and in connection therewith report plaintiff's statements that he suffered pain in moving his arm at the time the examination occurred.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by John Gibler against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. G. Trimble, for appellant.

GOODE, J.

Plaintiff, while a member of a carpenter and bridge gang of employés in the service of defendant company, was hurt January 19, 1906, by a fall from a car, and instituted this action to recover damages for the injury. On the day named plaintiff and his gang, which had been working at Edina, a station on defendant's line, started to Brashear, another station 12 miles west of Edina. A construction train consisting of three cars accompanied the bridge crew. One of the cars was used for the carriage of material, another for tools, and the third as a "bunk" and dining car. The latter was a box or inclosed car, but the other two were open flat cars. This construction train was taken up by a freight train which passed Edina going west, and attached near its rear end, say from five to seven cars from the caboose. The freight train was a very long one, consisting of 60 or more cars, and, in truth, was about the length of two ordinary trains, and was drawn by two engines. Both the engines were at the front of the train, but separated by a freight car. Six men, including the foreman, composed the crew of which plaintiff was a member. On taking passage for Brashear the foreman and two other members of the crew rode in the bunk car, but plaintiff and two others preferred to ride on the tool car, and plaintiff stood instead of sitting while the train was moving. This tool car, though not inclosed, had a board around the sides, and at one end stood a toolhouse in which the tools of the bridge gang were carried. The railroad track west of Edina is uneven, and with rather sharp rising and falling grades. In going down a grade, just as the engines had completed the descent, and were ascending the next rise, which was short, the train broke in two, its separation being occasioned by the uncoupling of two cars near the front. One consequence of the mishap was the portion of the train equipped with air brakes stopped suddenly on account of the brakes setting automatically, while the cars to the rear continued to move forward under their momentum, and crashed into the stationary part with the violence, one witness said, of two engines colliding. No serious damage was done to the train, which was recoupled, and continued its trip. But when the rear section ran into the front section, the impact threw plaintiff, who was standing on the tool car, over the side of the car to the ground. He struck on his head and shoulders and was hurt, and would have fallen between the cars if another member of the crew had not grabbed his coat, thereby swinging him over the side of the car. Plaintiff went with his crew and worked the remainder of the day, returned home on a hand car in the evening, and did not resume work for 19 days afterwards. He consulted a physician about his injuries, who found a bruise on his left shoulder, a swelling there and on the left arm, and difficulty in moving the arm, indicating certain muscles were injured. Plaintiff was treated for the injury, which the physician thought was a rupture of the muscles about the shoulder. During the trial the court appointed two physicians to make a physical examination of plaintiff, in order to ascertain what his condition was then— about a year after the accident. These physicians testified they found no external indications of an injury to the left shoulder and arm or the muscles thereabout; that their examination was both subjective and objective, meaning by the latter term an examination made by using their own senses, and by the former, listening to the history of the injury and previous symptoms narrated by plaintiff and his statement of his present symptoms. One of these physicians, Dr. Morris, while testifying they found no external signs of injury, said from the questions they asked plaintiff and the responses received he supposed plaintiff had an injury of the deltoid muscles and a detachment of the pectoralis major—muscles in the region of the shoulder and arm. But in connection with these statements Dr. Morris said one could see his arm pained him when it was moved. On being asked if plaintiff claimed or pretended his arm hurt him, the doctor said: "It looked like it hurt him." Another physician appointed to make the examination, Dr. Jurgens, based his opinion exclusively on statements of plaintiff...