Holland v. St. Louis & S. F. R. Co.

• Decision Date: 15 February 1904
• Citation: 79 S.W. 508,105 Mo. App. 117
• Court: Missouri Court of Appeals
• Parties: HOLLAND v. ST. LOUIS & S. F. R. CO.<SMALL><SUP>*</SUP></SMALL>

79 S.W. 508

105 Mo. App. 117

HOLLAND v. ST. LOUIS & S. F. R. CO.^*

Kansas City Court of Appeals. Missouri.

February 15, 1904.

CARRIERS — INJURY TO PASSENGER — NEGLIGENCE — JURY QUESTION — TESTIMONY OF PARTY'S OWN WITNESS—BINDING EFFECT— CONTRIBUTORY NEGLIGENCE — ASSUMPTION OF RISK—INSTRUCTIONS—APPEAL — ABSENCE OF AFFIDAVIT—PRESUMPTION AS TO FILING.

1. Evidence in an action by a passenger on a mixed train, injured by a collision between the cars composing the train after the parting of an automatic coupling, held to warrant submitting the question of defendant's negligence to the jury, notwithstanding the absence of evidence of any particular defect, and affirmative evidence that the appliances were in good order.

2. A party to a suit is not bound by the testimony of his witness so as to preclude him from relying on a different state of facts from those testified to.

3. A passenger in a crowded railroad car, who temporarily leaves his seat for a legitimate reason, is not thereby charged with contributory negligence, though, when he returns, the seat is occupied, and he is compelled to stand in the aisle.

4. In an action by a passenger for injuries occasioned by a collision between the cars of a train after the parting of a coupling, defendant's instruction that if its cars were equipped with automatic couplers and air brakes in good order, and that no defects could be discovered in either by careful examination, and that cars of the kind in question did become uncoupled when handled as these cars were, and "that these cars became uncoupled without apparent cause or discoverable defect," then defendant would not be liable, is improperly refused.

5. While a passenger on a mixed train assumes the risk of jars and concussions incidental to its ordinary operation, he does not assume the risk of a jar occasioned by a collision between the cars after the parting of a coupling, though it is no greater than those which are customary.

6. Recitals in a copy of the record entry of the trial court, that an affidavit for appeal was filed and the appeal allowed, raise a presumption that such an affidavit was filed, which, in the absence of a contrary showing, is conclusive, and warrants a refusal to dismiss the appeal, though the affidavit is not in the abstract before the Court of Appeals.

Appeal from Circuit Court, Dade County; H. C. Timmonds, Judge.

Action by William M. Holland against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

L. F. Parker, E. P. Mann, and J. T. Woodruff, for appellant. D. P. Dyer, for respondent.

BROADDUS, J.

This is an action by plaintiff to recover damages for injuries alleged to have been received December 24, 1902, while a passenger on one of defendant's trains consisting of four freight cars and a passenger coach, making what is known as a "mixed" train. The coach was a combination car divided by a partition, one part being used for passengers and the other for baggage. According to the plaintiff, this car, on the day of his alleged injury, was crowded with passengers to the extent that he was unable to obtain a seat, and while he was standing in the aisle of the coach, which was attached to the rear of the train, he was suddenly thrown against a stove and onto the floor because of a violent jar of the car, whereby he was seriously injured. The testimony showed that the engineer separated the train within about a mile of the town of Greenfield, taking the two front cars to that town and returning for the remainder. Attaching the engine to these latter cars, he started forward, whereupon the coupling between two of the cars became detached. Again connecting the cars, he proceeded forward something like a half a mile, when the same coupling became detached, again separating the train, the front part of which continued on a distance of 30 or 40 yards, when it was stopped by the automatic action of the brakes about the distance named in advance of the detached rear section. These latter cars continued to move forward until they collided with the then stationary front cars with much force, throwing plaintiff against the stove and onto the floor of the passenger coach, and causing his injuries complained of.

After testifying to substantially the foregoing facts, J. W. Gott, a brakeman on the train, introduced as a witness by plaintiff, further testified that the cars which separated as aforesaid had been attached by what is known as "automatic couplers," and air brakes were used. After describing the couplers, he stated that they were held together by means of a lever, which is moved to unfasten them; and when asked if he had examined the couplers in question after they became detached he said, "Well, I didn't make any real close examination because I couldn't see any reason why they should have come apart, you know, but of course if there had been anything very much wrong with the coupler I would have noticed it without going under the car to make a close examination, but I couldn't see anything." He then further stated that trains using such couplers often became uncoupled, but that ordinarily, when equipped with air brakes, as here, when the air-brake line is parted the brakes are automatically set on the entire train, and both sections come to a stop. He could not, however, give a reason why the rear section of the train did not stop in this instance, as did the front section, after the train separated. The defendant's evidence tended to show that the cars were equipped with the latest and most approved automatic couplers and air brakes, that they were all in good order, and that an examination subsequent to the accident disclosed no defects in them....