Hawk v. Chicago, B. & Q. Ry. Co.

• Decision Date: 27 January 1908
• Citation: 130 Mo. App. 658,108 S.W. 1119
• Court: Missouri Court of Appeals
• Parties: HAWK v. CHICAGO, B. & Q. RY. CO.

108 S.W. 1119

130 Mo. App. 658

HAWK v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

January 27, 1908.

Rehearing Denied April 6, 1908.

1. APPEAL — REVIEW — QUESTIONS OF FACT— DEMURRER TO EVIDENCE.

In determining whether a demurrer to the evidence should have been sustained, the reviewing court will view the evidence in the aspect most favorable to the cause of action asserted.

2. CARRIERS—CARRIAGE OF PASSENGERS—PASSENGERS ON FREIGHT TRAINS.

A railroad assuming to carry passengers on its freight trains is bound to exercise the same degree of care as is required in the operation of passenger trains; the difference being that a passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.

3. SAME.

Sudden jolts and jars in starting and stopping a freight train, which cannot be avoided in the exercise of due care, are assumed by a

passenger as one of the perils of travel by that mode of conveyance.

4. SAME—ACTS CONSTITUTING NEGLIGENCE.

The fact that a sudden and violent jolt or jar accompanies the stopping of a freight train will not raise ipso facto a presumption of negligence.

5. SAME—ACTIONS FOR INJURIES—EVIDENCE— SUFFICIENCY.

Evidence in an action for injury to a passenger on a freight train held not to show that the jolt to which the injury was due was extraordinarily violent.

6. EVIDENCE—OPINION EVIDENCE — CONCLUSIONS—WEIGHT.

Expressions of a nonexpert witness that the jolt which accompanied the stopping of a freight train was a "terrible shock," "a severe shock, sufficient to knock the breath out of me," amount to nothing more than mere conclusions, and possess no probative value.

7. CARRIERS—CARRIAGE OF PASSENGERS—ACTIONS FOR INJURIES — PRESUMPTIONS AND BURDEN OF PROOF.

In an action for injury to a passenger, the burden is on plaintiff to show that the jolt to which the injury was due was so sudden and unusual that it bespoke negligence.

8. SAME.

The fact that a passenger on the seat running lengthwise of a caboose, with his face turned toward the door, was thrown therefrom to the floor by a jolt accompanying the stopping of the train, is insufficient to raise a presumption of negligence.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by John S. Hawk against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff; and defendant appeals. Reversed.

F. Sheetz & Sons, for appellant. Arthaud & Arthaud and Scott J. Miller, for respondent.

JOHNSON, J.

This is an action by a passenger against a common carrier to recover damages resulting from personal injuries alleged to have been caused by the negligence of the carrier. Verdict and judgment were in favor of plaintiff in the sum of $958, and defendant appealed.

On the morning of August 31, 1904, the plaintiff purchased a ticket from defendant's agent at Chillicothe, which entitled him to ride to Hamilton, and became a passenger on a freight train on which passengers were permitted to ride. The train consisted of an engine and 20 cars, 14 of which were equipped with air brakes. At Breckenridge, an intermediate station, the train was run on a side track for another train to pass, and, in stopping, the forward motion of the caboose was arrested so suddenly that plaintiff was thrown to the floor and injured. Thus far the parties agree on the facts. Plaintiff, who was 75 years old at the time of the injury, testified that he was seated on the north side of the car in a seat running lengthwise. The train was headed to the west, and plaintiff had his face turned toward the door at the east end of the car. While in this position he was thrown from his seat by what he describes as "a terrible shock, sufficient to knock a man off his seat, and knock him senseless for awhile." He fell to the floor with his head toward the southwest, striking the back of his head with sufficient violence to render him unconscious. Further he said, concerning the nature of the stop: "Well, it just appeared a severe shock, sufficient to knock the breath out of me. It would have knocked a dog down, I guess. Q. How, Mr. Hawk, did it affect the caboose? A. I can't tell that, because it affected me first, struck me so I didn't know anything. Q. Did you notice any slacking of the train prior to this time, prior to the shock? A. I heard the rattle of it like it usually is. Q. As compared with other stoppings of a train, how was this stopping or shock? (Defendant objects to the question because this witness does not show that he is any expert in that regard whatever.) By the Court: He can state whether it stopped suddenly or not. A. Very much so. Q. Explain what you mean by `very much so.' A. A very severe shock." Plaintiff, who is a farmer, did not claim to possess any expert knowledge relative to the usual and ordinary manner of operating and stopping freight trains, and did not attempt to say that the stop made in this instance was extraordinary; i. e., not one incidental to the proper and usual operation of that class of trains. He introduced as a witness a Mr. Knoop, a traveling salesman, who testified that he was a passenger on the train, and that, before it came to a full stop, he left his seat and proceeded to the rear platform of the caboose, and was standing on the step, waiting for the car to stop, when its sudden halt caused him to step to the ground. He said: "Well, as near as I could tell you, why, I was standing there waiting on the train to stop, when the train did stop. Of course, I was just holding with one hand, with my grip in the other, and it threw me and I simply...