Herke v. St. Louis & S. F. Ry. Co.

• Decision Date: 07 February 1910
• Citation: 141 Mo. App. 613,125 S.W. 822
• Parties: HERKE v. ST. LOUIS & S. F. RY. CO.
• Court: Missouri Court of Appeals

125 S.W. 822

141 Mo. App. 613

HERKE v. ST. LOUIS & S. F. RY. CO.

Kansas City Court of Appeals. Missouri.

February 7, 1910.

Rehearing Denied February 21, 1910.

1. DEATH (§ 58) — CAUSE OF DEATH — BURDEN OF PROOF.

In an action for death, the burden is on plaintiff to show, not only that the death might have resulted from defendant's fault, but if it could have resulted from either of two causes, for one of which defendant would be liable, and for the other not, plaintiff must also show with reasonable certainty that the cause for which defendant was liable produced the result.

2. DEATH (§ 58) — CAUSE OF DEATH — BURDEN OF PROOF.

In an action for death, plaintiff's case need not exclude all possibility of some other cause being the producing cause of death than that for which defendant is liable, since, if a human being is subjected to violence and dies within a few minutes thereafter, it is not necessary to show what part of his organism gave way, but it will be presumed that he died from such preceding violence.

3. DEATH (§ 76) — CAUSE — RAILROAD COLLISION — EVIDENCE.

Evidence held to warrant a finding that decedent, a passenger, was killed as the result of a railroad collision.

4. DEATH (§ 17) — PROXIMATE CAUSE — PRE-EXISTING DISEASE.

In an action for death resulting from violence caused by defendant's negligence, it is no defense that decedent was afflicted with a disease which would sooner or later end his life.

5. DEATH (§ 104) — "IMMEDIATE" AND "PROXIMATE" CAUSE — "REMOTE" — INSTRUCTIONS.

In an action for wrongful death, the court's use of the words "immediate and proximate cause" in an instruction submitting plaintiff's theory of the case was not objectionable, since the words "immediate and proximate" were synonyms and the antonym of "remote"; the word "proximate," when connected with the word "immediate," being readily understood by the jury.

6. APPEAL AND ERROR (§ 987) — REVIEW OF EVIDENCE — WEIGHT.

The Court of Appeals cannot weigh the evidence.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Lizzie E. Herke against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and A. F. Smith, for appellant. Reed, Atwood, Yates, Mastin & Harvey and Paxton & Rose, for respondent.

ELLISON, J.

Plaintiff is the widow of August H. Herke, who was killed in the state of Kansas, in a collision of one of defendant's passenger trains with a number of coal cars left standing on the track. She brought this action in this state to recover damages for the death of her husband and recovered judgment for $5,250, and defendant prosecuted this appeal.

The deceased was a passenger on the train which was running about 30 miles an hour when it collided with the standing coal cars with such force as to throw some of the cars onto others, and to telescope some of the cars in the passenger train, killing some persons thereon. It likewise tore seats from their fastenings and overturned one car, and soon after the cars took fire. Deceased, two other passengers, and the conductor immediately went forward one or two car lengths to the engine, where the fireman was found with his leg broken. In going forward one of the passengers put his hand on deceased and talked to him, but he took no notice and did not answer. They assisted the fireman from the engine, and took him a short distance to one side. The deceased helped, but just the amount of help was not agreed upon by the witnesses, some stating he carried him upon his back, while others said he assisted only. At any rate, when the fireman was put down on the ground, some one suggested he should have a cushion to lie upon, and deceased went back perhaps a car length to get one from a car. He went into the car with another man, who said, "I will take this one." The deceased said, "All right, you take that, and I will go to the other end and get another one." Deceased then went towards the end of the car, and, when within a few feet of the door, he fell with a groan and expired. There was bruise on the temple said to be about the size of "a half dollar." He wore a stiff hat, which was broken. The plaintiff's theory is that deceased died from the effects of the shock caused by the collision; while defendant's is that he had heart disease which culminated in his death at that time by reason of his voluntary exertion in carrying the fireman from the engine.

It was the duty of the plaintiff to make such showing as would justify the jury in believing that the collision was the proximate cause of deceased's death — the burden of that was on the plaintiff. It will not do to merely show that the death might have resulted from defendant's fault. If the death may have resulted from either of two causes, for one of which defendant would be liable and for the other it would not, the plaintiff should show with reasonable certainty that the cause for which defendant is liable produced the result. Warner v. Railway Co., 178 Mo. 135, 77 S. W. 67; Smart v. Kansas City, 91 Mo. App. 586. But it will be noticed that it is only necessary to establish with reasonable certainty the cause for which defendant would be held liable. We had occasion in Kelly v. Railway Co. (decided this term) 125 S. W. 818, to say that the evidence to establish plaintiff's case need not exclude all possibility of some other cause being the actual producing cause. What is stated in plaintiff's brief as to the character of evidence in some cases may be appropriately quoted by way of illustration: "If a human being...