Hawk v. The Chicago, Burlington & Quincy Railway Co.
| Citation | 108 S.W. 1119,130 Mo.App. 658 |
| Parties | JOHN S. HAWK, Respondent, v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Decision Date | 06 April 1908 |
| Court | Kansas Court of Appeals |
January 27, 1908;
Appeal from Livingston Circuit Court.--Hon. Joshua W. Alexander Judge.
REVERSED.
Judgment reversed.
Frank Sheetz & Sons for appellant.
(1) The court erred in not sustaining the demurrer of the appellant to the evidence. Hedrick v. Railroad, 195 Mo. 104; Portuchek v. Railroad, 101 Mo.App. 52; Guffey v Railroad, 53 Mo.App. 462; Erwin v. Railroad, 94 Mo.App. 291; Bartley v. Railroad, 148 Mo. 140. The physical facts show that it was impossible for the plaintiff to have been injured while he was sitting and the verdict cannot stand. Phippin v. Railroad, 196 Mo. 343; Petty v. Railroad, 179 Mo. 678. Neither courts nor juries are bound to stultify themselves by giving credence to such testimony. Payne v. Railroad, 136 Mo. 583. (2) The court erred in not granting the defendant a new trial because the verdict was against the evidence, and could not be sustained under the physical facts detailed by all the witnesses. (3) The doctrine of res ipsa loquitur does not apply. Hedrick v. Railroad, 195 Mo. 121; Erwin v. Railroad, 94 Mo.App. 297; Trotter v. Railroad, 122 Mo.App. 415. The plaintiff charged in his petition specific acts of negligence, and the burden is on him to prove them, and the above doctrine cannot apply. McGrath v. Transit Co., 197 Mo. 105.
Scott J. Miller, with Arthaud & Arthaud, for plaintiff.
(1) The judgment is for the right party and should not be disturbed. (2) The injury was shown to have been caused by error of the carrier in operating its train. Coudy v. Railroad, 85 Mo. 85. (3) The instructions construed together are harmonious, and give the correct law to guide the jury, on both plaintiff's and defendant's theory. (4) No errors were committed in the admission of testimony. Authorities cited by appellant. (5) This court will not pass on the weight of the testimony, or which side the jury should believe. Coudy v. Railroad, 85 Mo. 85; and a long line of decisions from this case to date.
--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 twenty cars, fourteen of which were equipped with airbrakes. 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 seventy-five 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:
He alighted in safety and, hearing that someone was hurt inside the car, returned in time to assist in raising plaintiff from the floor. Counsel for plaintiff tried very hard, but unsuccessfully, to obtain the statement from the witness that the stop was unusual. We quote from his testimony:
The witness was excused and afterward recalled by plaintiff when the following examination occurred:
"Q. I will ask you was this or was it not more severe, violent or sudden than ordinary stops that you experience in traveling on freight trains? Objection.
Defendant introduced as witnesses the train men and two colored men who were passengers on the car. All of these witnesses state that before the car came to a stop plaintiff left his seat and proceeded to the east door where he stood looking toward the east and with his hand on the door jamb, when the sudden stopping of the train...
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