Holland v. Missouri Pacific Railroad Company

• Citation: 257 S.W. 202,214 Mo.App. 490
• Parties: EDITH HOLLAND, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Decision Date: 07 January 1924
• Court: Court of Appeal of Missouri (US)

257 S.W. 202

214 Mo.App. 490

EDITH HOLLAND, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Springfield

January 7, 1924

Appeal from Circuit Court of Butler County.--Hon. Almon Ing, Judge.

AFFIRMED (on condition).

J. F Green and J. C. Sheppard for appellant.

(a) The court erred in giving to the jury instruction No. 1 at the request of the respondent, for the reason that it is broader than the evidence, and permits the jury to find for her if they find and believe from the evidence that the exhaust from the locomotive caused her horse to become frightened and run away, there being a complete failure of proof that the exhaust is an unusual noise, or that it is unnecessary in the operation of the engine; and for the further reason that respondent and her daughter testified that the noise came from the front of the engine near the ground and was produced by escaping steam. So that, the instruction is not limited by the proof and is prejudicial error. Turner v. Baker, 42 Mo. 13; Franz v. Hiltebrand, 45 Mo. 121; Musick v. Atlantic & Pacific Ry. Co., 57 Mo. 134; Carey v. St. L., K. C. & N. Ry. Co., 60 Mo. 209; Champion Coated Paper Co. v. Shilkee, 237 S.W. 109; Holden v. Mo. R. R. Co., 177 Mo. 456; Boles v Dunham, 208 S.W. 480, and cases cited.

R. I Cope and Sam M. Phillips for respondent.

(a) When one is placed in a position of peril by the negligence of another, his attempt to escape danger even by doing an act which is also dangerous, and from which injuries resulted, will not prevent a recovery. Nelson v. Railroad, 58 Mo. 593; Twonley v. Railroad, 69 N.Y. 158; Buel v. Railroad, 31 N.Y. 314. (b) And the foregoing rule is true, even though the person would not have been injured at all had he not made the attempt to escape the threatened danger. Twonley v. Railroad, 69 N.Y. 158; Buell v. Railroad, 31 N.Y. 314; Railroad v. Mowery, 36 Ohio State 418; Wilson v. Railroad, 26 Minn. 276; Smith v. Railroad, 30 Minn. 169; Stultz v. Railroad, 44 Wis. 638; Gunz v. Railroad, 66 Wis. 672; Railroad v. Rhodes, 56 Ga. 645.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.--

Plaintiff sued to recover for personal injuries. The cause was tried to a jury, and plaintiff obtained a judgment for $ 5000. Failing to obtain a new trial defendant appealed.

Immediately south of Poplar Bluff defendant's railroad runs practically north and south. The public road, known as the Pike Slough road, parallels the railroad on the east side, and within fifteen or twenty feet thereof. Plaintiff with her daughter was in a buggy traveling south on the Pike Slough road alongside the railroad. She alleges that an engine approached her from the rear and was so carelessly managed and controlled as to suddenly, and without warning, make a loud, unusual and terrifying noise by emitting a great quantity of steam, thereby causing her horse to run away and throw her from the buggy and severely injure her. Defendant answered by a general denial.

Defendant challenges the sufficiency of the evidence, an instruction, and contends that the verdict is excessive.

Minnie Holland, plaintiff's daughter, testified as follows:

"The first time I saw the engine down there we were on the Pike Slough road. The engine blew off steam from the bottom and sides, up near the cow catcher where the two little wheels are. The first noise wasn't so very loud, the second time it got louder. At that time we were on the part of the road which ran by the side of the track. Then the horse got scared and started to run, ran about a hundred yards, or feet. At that point the road was pretty close to the railroad track, about as far as across this room. I saw the men on the engine. My mother just pulled on the bridle to stop the horse. We went on down the road, and that engine backed up then, in the meantime we were trying to stop the horse. The engine then backed up, while we were just about to Irby's store the engine caught up with us and blew steam louder, from down at the sides, made a loud noise, and the horse jumped on one side and ran away, for a good ways; but kept straight in the road, and made a turn; and when he made this turn my mother fell out of the buggy. I did not hear the engine whistle or anything like that, just made these noises, letting this steam out. It just ran up there and shot out this steam. After my mother fell out of the buggy, I fell out, too. I stopped the horse, after I fell. I just jumped up and ran after him; ran a good ways, and then went back to my mother. I found her at Irby's store. She got her ribs broken and her ankle crushed."

On cross-examination this witness testified:

"We had just come from home and were going back home. We had been to town. This happened in the afternoon, I don't know just when, about one or two o'clock. We were going south past the houses of the colored people when we first saw this engine, had just got past those houses when we first saw it. At that point the road goes west and then turns south. The engine was coming behind us when I first saw it. Say this is the corner now, the road comes down this way, and then comes down the Pike Slough road. When we turned the corner here, and started south, the engine was up the track further north, I don't know how far. It had no cars attached to it, just an engine by itself. The pilot was pointed south. It went right on kept up with us. We went right along by the side of it, for about a hundred yards, or something. The horse kind of scared then at the engine which was blowing steam which came out from the side of the engine, the side we were on, and toward the front end of the engine, the end further south. I am sure the cowcatcher was pointed south, and the engine did not have any cars attached to it. It didn't sound very loud the first time; but the next time it sounded louder, and came out at the same place. My mother was driving the horse which we had since last August. I do not know how old he was. That was the first time he got scared. Q. Did you ever have him around trains before? A. We would have him close to a gate when the train came by. We have driven him to town before that on the same road, and trains came by, and he never did get scared before. My mother had hold of the reins and she fell out and I got up to get the reins, and in trying to catch the reins I fell out side-ways. Before the horse got scared he was walking, and after he got scared he just trotted way and I went down and got him and brought him back."

Plaintiff testified: "The horse was riding right along until it got scared. I just seen that 224 locomotive was the only engine I saw that day. I know where the negroes live, but that was down further, quite a ways further. It blew off steam down below, pretty loud. The steam came from down below the front wheels, and was very loud. At that time our horse was pretty close to the engine, about to the table there. We could see the engine; the horse started to run, and I checked it the first time, stopped him right away. The engine went north and then came south; before he came south again he went back north. When he went back north, I just kept going, and had got pretty near to Irby's store when the engine came back, and the men were laughing, the engineer and fireman on the engine. I was going to Irby's store then. The horse ran way, I know when a horse runs. I don't know whether it ran a mile past Irby's store or how far it was. It throwed me out and ran over me, and hurt me."

There were other witnesses who testified to facts tending to corroborate plaintiff, but we do not deem it necessary to set out their evidence.

Defendant's engineer testified: "On January fifth last I was operating and running a switch engine here in the Poplar Bluff yards. I remember an accident that occurred down near Mr. Irby's store on that date. I was operating that switch engine at that time; the engine was headed north; we had between twenty-five and thirty cars in the train and I was backing south; and I noticed a one horse spring wagon with two ladies in it, and I presume about six car lengths before I overtaken this wagon the horse acted as though he was going to become frightened a little bit, and I shut the throttle off and the engine was coasting when I passed them and the lady on my side raised her feet and jumped out on my side between the wheels, and the driver then raised up and jumped out on the other side. When the old lady jumped out on my side, she raised immediately to her feet, and when she saw what the driver did, she reached in between the wheels to pick up the lines, and I shut the engine down and told the fireman to go over there and find out what happened. The steam cocks were shut off; the throttle had a muffle pop on it, a hood that goes over the pop that prevents the steam from making a noise. Q. That was making a noise? A. When I shut off the throttle it did. The horse was already frightened when this occurred; I never did see the horse run. When it started off it acted like it wanted to trot or something like that, but I never did see it run. Fireman J. E. Pinkley was on the engine with me at the time. He and I were not laughing about this or anything else. I said we had about twenty-five or thirty loads. That tonnage was not such a load for the engine, but that morning it was kind of cool and it was working the engine pretty hard, which requires a good deal of steam. We passed by this horse only one time; the engine did not switch back and forth while this was going on. I was backing south. This accident occurred the first time I backed down after noon. In...