Herke v. St. Louis & San Francisco R. Co.

• Decision Date: 07 February 1910
• Citation: 125 S.W. 822,141 Mo.App. 613
• Parties: LIZZIE E. HERKE, Respondent, v. THE ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

125 S.W. 822

141 Mo.App. 613

LIZZIE E. HERKE, Respondent, v. THE ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1910

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

Judgment affirmed.

John H Lucas and A. F. Smith for appellant.

(1) Plaintiff's case being based on mere conjecture, the court erred in not sustaining defendant's demurrer to the evidence. Sheldon v. Railroad, 29 Barb. 272; Oglesby v. Railroad, 177 Mo. 295; Moore v Railroad, 28 Mo.App. 622; Cothron v. Packing Co., 98 Mo.App. 343; Browning v. Railroad, 106 Mo.App. 729; Caudle v. Kirkbride, 121 Mo.App. 92; Hamilton v. Railroad, 123 Mo.App. 619; Grant v Railroad, 133 N.Y. 658; Fuchs v. St. Louis, 167 Mo. 620; Warner v. Railroad, 178 Mo. 131; Goransson v. Mfg. Co., 186 Mo. 300; Trigg v. Ozark, etc., Co., 187 Mo. 227; McGrath v. Transit Co., 197 Mo. 104; Smart v. Kansas City, 91 Mo.App. 586; Young v. Railroad, 113 Mo.App. 636; Byerly v. Light Co., 130 Mo.App. 603. (2) The verdict was against the weight of the evidence. (3) The court erred in its rulings on the evidence by permitting speculative and improper questions to be asked and answered. (4) The instructions ignored defendant's defenses. Phelan v. Granite, etc., Co., 115 Mo.App. 423, 435. (5) The instructions did not require the jury to find that the injuries to deceased were the result of the collision. Oates v. Railroad, 168 Mo. 548. (6) The instructions did not require the jury to find that Mr. Herke's health was the result of physical injuries and nervous shock simultaneously produced. Strange v. Railroad, 61 Mo.App. 592; Deming v. Railroad, 80 Mo.App. 158. (7) The instructions submitted issues not within the pleadings and not within the evidence. Heinzle v. Railroad, 182 Mo. 535; Gerhart v. Railroad, 132 Mo.App. 546. (8) The court used technical terms without defining them. Montgomery v. Railroad, 181 Mo. 513; Mulderig v. Railroad, 116 Mo.App. 672. (9) The instructions assumed facts. York v. Everton, 121 Mo.App. 645. (10) The plaintiff was not entitled to recover on the theory that defendant would be liable if her husband's death was caused by overexertion in the work of rescue, because her petition presented no such issue. Todd v. Railroad, 126 Mo.App. 684; Tinkle v. Railroad, 212 Mo. 471; Black v. Met., etc., Co., 217 Mo. 672; Davidson v. St. L., etc., Co., 211 Mo. 320; American, etc., Co. v. St. Louis, etc., Co., 120 Mo.App. 416.

Reed, Atwood, Yates, Mastin & Harvey and Paxton & Rose for respondent.

(1) It is erroneous for the appellant to ask the court to give credit to defendant's evidence on passing on the question whether plaintiff made out a case. This was a jury case, and this court will only look at the plaintiff's evidence and that part of the defendant's evidence which helps the plaintiff and is against the defendant. Deitring v. Transit Co., 109 Mo.App. 541; Forbes v. Dunnevant, 198 Mo. 193. (2) Where two causes are shown for a death and it cannot be determined which brought about the death, there can be no recovery; but to bring about such a result, both causes must be shown by the plaintiff's evidence or arise from the admitted physical facts in the case. If one cause is shown by the plaintiff and the other by the defendant, there is no uncertainty, because the jury is presumed to have rejected defendant's testimony. See opinion by Judge BREWER in Sorenson v. Railroad, 36 F. 166.

OPINION

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 $ 5250, and defendant prosecuted this appeal.

The deceased was a passenger on the train which was running about thirty 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 carlength 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 a 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. Railroad, 178 Mo. 135; 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. Railroad (ante, 490), 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 is subjected to any kind of violence and dies within a few minutes thereafter, the conclusion is that his death was caused by the violence. Thus, if you are struck or are thrown from a horse, and die within the next few minutes, it will be presumed that you died from the preceding violence. It is not necessary to show what part of your organism gave way; indeed the human system is so complicated and delicate that it is often impossible to prove this. It is enough that there is an efficient cause closely followed by the effect."

This case, we readily concede, shows that it ought to be difficult for the jury to determine which of the alleged causes which the evidence leaves open for discussion as a cause, actually produced the death. But being difficult does not argue that the jury should not solve it. Being difficult should not transfer a determination of the facts from the jury to the court. We therefore conclude that the evidence justified the verdict. The deceased was a vigorous and healthy man. He was not regarded by his family and friends as frail, nor as affected with any vital ailment. There was nothing in his life to suggest its sudden termination. Still, of course, there is a possibility of his death not being directly connected with the collision; but, as we have just stated, it is not required that the evidence shall exclude possibility of a non-liable cause.

In this connection defendant claims, and had evidence tending to prove, that deceased had heart disease. Let it be granted that he had. It leaves the same question to be answered; that is, whether he came to his end by reason of a shock and injuries caused by the collision. It is manifest that a plea that one was afflicted with a disease...