Hedrick v. Missouri Pac. Ry. Co.

• Decision Date: 06 March 1906
• Citation: 93 S.W. 268,195 Mo. 104
• Parties: HEDRICK v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

93 S.W. 268

195 Mo. 104

HEDRICK v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

CARRIERS — INJURY TO PASSENGER — JOLTING OF TRAIN.

A carrier was not liable for injuries to a passenger riding in a caboose, owing to the jar on the stopping of the train, where the jar was not sufficient to throw the passenger from his feet and there was no evidence of any defect in the construction of the roadbed or train or of any negligence in the management thereof.

Appeal from Circuit Court, Johnson County; W. L. Jarrott, Judge.

Action by Jacob Hedrick against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. T. Railey, for appellant. S. G. Kelly and O. L. Houts, for respondent.

GANTT, J.

This action was commenced in the circuit court of Johnson county on June 30, 1900, and the defendant was duly served with process on that date. At the November term, 1900, the plaintiff filed an amended petition which is in substance as follows: That the defendant is a railroad corporation, operating a line of railway from the town of Knob Noster, in Johnson county, to the city of St. Louis, and was, on the 22d of January, 1900, a common carrier of passengers for hire between the points above named, and on that date for a valuable consideration received by it, received plaintiff into one of its said cars, to wit, a caboose, in a freight train called a "stock train," and undertook to carry him safely from Knob Noster to St. Louis. It is then alleged "that defendant disregarded its duty to so carry plaintiff, and by its agents, servants, and employés at or near the town of La Monte, while plaintiff was in said caboose and moving toward the rear end thereof, and while said train and car were moving slowly, negligently and unskillfully mismanaged and operated said train and car and engine, and carelessly and negligently, and with great and unusual and unnecessary force and violence, jerked, knocked, and bumped said train and cars and said caboose, and with great and unusual and unnecessary force and violence knocked said cars against said caboose, and by reason thereof plaintiff was with great force and violence jerked, thrown down and against said caboose and was cut, bruised and wounded, and permanently injured in his whole body, head, arms, neck, spine, and limbs, so that he has been rendered unable to labor, and has suffered, and will continue to suffer through the remainder of his life, great bodily pain and mental anguish, to his damage for the sum of $25,000, for which he prays judgment." The answer consists: First, of a general denial. Secondly, as follows: "The plaintiff herein, at the time and place of the alleged accident, was not upon defendant's train as a passenger, and had no legal right to be thereon; that said defendant was not guilty of any negligence in respect to any legal duty which it owed plaintiff; that said plaintiff was injured, if at all, by reason of his own gross negligence and recklessness in moving about upon defendant's train while it was in motion, without any reason or justification therefor." Third: "That said plaintiff was guilty of gross negligence, not only contributing to, but directly causing, his own injury, in that he was unnecessarily, negligently, and carelessly standing up or moving about in defendant's caboose while the train was in motion, and by reason of such negligence, recklessness, and carelessness sustained the injury, if any, complained of, without the fault or negligence of said defendant." The reply admits that the plaintiff was injured in the caboose of the defendant, and denied each and every other allegation contained in the answer. The cause was tried at the November term, 1902, and a verdict returned for the plaintiff for $5,000, and a judgment was rendered accordingly. Motions for new trial and in arrest of judgment were filed in due time, heard, and overruled at the October term, 1902. From that judgment the defendant has appealed to this court.

The evidence tends to establish the following facts: The plaintiff, Mr. Hedrick, resided at the time of the accident near Knob Noster, in Johnson county. He was 53 years old. On the 20th of January, 1900, he started from Knob Noster, with a car load of hogs belonging to Hanna Bros., on what is known as a "stock pass." He took passage in the caboose attached to a freight train, bound from Knob Noster to St. Louis. There was no other passenger in the caboose but himself. The usual train crew were in and out of the caboose from time to time until they reached La Monte, a station east of Knob Noster, and near the western line of Pettis county. This train stopped at La Monte and took in another car load of stock belonging to Hanna Bros. The plaintiff testified that he was requested by Hanna Bros. to look after a load of hogs when he got there. Mr. Jefferson Hanna was at La Monte and had purchased a load of hogs from Mr. Oglesby, and he testified that Hanna Bros. gave a man by the name of Fowler a pass for the load of hogs taken on at La Monte, and that he was loading the hogs into the car at La Monte when this train arrived there. Mr. Oglesby testified that he was assisting Mr. Hanna in loading the car at La Monte, and from their evidence, it would seem plain that plaintiff had nothing to do with the loading of the hogs at La Monte; that they were practically loaded on the car when plaintiff reached La Monte on the train that day. Plaintiff's account of what took place at La Monte was that after the train got to La Monte it was in a manner stopped. Two of the trainmen had already left the caboose, and the plaintiff got up and started to the rear end of the car, and there was a jump. He did not know what happened, but thought the train had collided, and for a moment or two he did not know what had happened, and when he came to himself he felt that he was injured and sat down on a seat — went to a seat and sat down. At that time the train was perfectly still. The caboose, after the train stopped, was in the neighborhood of 100 or 150 yards of the depot at La Monte. He testified that when he came to himself he was on his feet, and could not state whether he had been thrown down or not. He testified that he had traveled a number of times in cabooses attached to freight trains, and on freight trains; and he was then asked the effect that the stopping of the train had, and he answered: "The reaction on the car was so severe that it upset the water tank in the caboose and spilled water all over the floor. * * * The jar was severe, the severest I ever experienced on a freight train. * * * The extent was so hard it upset the water tank in the car. * * * It jerked me senseless and injured my neck." On cross-examination he testified that, when he started to go to the rear end of the caboose, "the train was barely moving. It was not running one mile an hour; not near as fast as a man could run or walk. It was not going as fast as a man could walk. The rate of speed was so that a child could walk and get off, if it had not been jarred." He was asked whether he was thrown down, and answered: "Well, I do not know whether I was or not. Right there is where I never will be clear. I do not think I went to the floor. I was stunned for a minute or two." Asked whether or not he struck his head, neck, or arm against anything in the caboose at that time, he answered: "I think I kind a caught myself on the — against the doorcasing, or against the door as it swung, the jar was so violent and severe." He did not know where the brakemen were at the time of the accident. He described his injuries as follows: "Right from the center of my neck, back here, either of you jurymen can feel a rupture from my neck down. Right there is a tender place (indicating). It is violently sore, and I suffer all the time. I am never without a dumb sensation from my head over my right shoulder. It affects me clean down to my right foot at times. My natural way of sleeping is on my back. I cannot sleep on my back. I have got to sleep on my left side to get any sleep, and if I happen to turn my back, the pain gets so severe it wakes me up, as high as a half dozen times in the night. I am not able to perform manual labor on account of my right side. The pain runs from my ear down to the center of my neck; cannot turn my head, without turning my body, without causing it to hurt. I cannot turn my head from right to left without hurting my neck. I am in pain all the time in my neck and head. When I get a little bit warm the pain is more severe. My right arm and right side is not stout. I can hardly put on my clothing. Before I was hurt, I was a stout, able-bodied man. Now I cannot perform my customary work on the farm." On cross-examination, witness identified the live stock contract between the railroad company and Hanna Bros., which provided that plaintiff should be in charge of the car load of stock as the agent of Hanna Bros. The ninth provision of the contract provides "that the person or persons in charge of live stock carried by this contract shall remain in the caboose car attached to the train while the same is in motion, and whenever such person shall leave the caboose car, or pass over or along the cars or tracks, he shall do so at his own risk of personal injury from every cause whatever, and the said railroad company shall not be required to stop or start its trains or caboose cars from depots or platforms, or to furnish lights for the accommodation or safety of such person." Plaintiff testified, further, that there were from 20 to 23 or 24 cars in the train. Plaintiff was asked if he did not know, prior to the time of this accident, that it was more dangerous to be moving about when the train was in motion than to sit down, and he answered, "Of course, it would be more dangerous." Asked if he did not know that on account of the danger to which passengers are exposed they were...