Holland v. St. Louis And San Francisco Railroad Co.
| Decision Date | 15 February 1904 |
| Citation | 79 S.W. 508,105 Mo.App. 117 |
| Parties | WILLIAM M. HOLLAND, Respondent, v. ST. LOUIS AND SAN FRANCISCO RAILROAD CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Dade Circuit Court.--Hon. H. C. Timmonds, Judge.
Cause reversed and remanded.
L. F Parker, E. P. Mann and J. T. Woodruff for appellant.
(1) Defendant's demurrer at the close of plaintiff's evidence should have been sustained and the instruction directing a verdict in its favor should have been given. Erwin v. Railroad, 94 Mo.App. 289; Hartley v Street Railway, 148 Mo. 141; Scott v. Dock Co., 10 Jur. N. S. 1108; Guffy v. Railroad, 53 Mo.App 469; Wait v. Railroad, 165 Mo. 612; Hite v Street Railway, 130 Mo. 133; Holt v. Railroad, 84 Mo.App. 443; Frohriep v. Railway, (Mich.) 91 N.W. 748; Claflin v. Dodson, 111 Mo. 20. (2) The court erred in not sustaining the demurrer which the defendant interposed at the close of the whole case and in refusing to instruct the jury to find for the defendant. See authorities cited above. Hite v. Street Railway, 130 Mo. 140; Railroad v. Talbot, 78 Ky. 621; Railroad v. Turner, 41 Ark. 163; Railroad v. Basham, 47 Ark. 322; Reichenbach v. Ellerbee, 115 Mo. 595; Payne v. Railroad, 136 Mo. 106; Railroad v. Rudolph, 38 S. E. (Ga.) 328; Railroad v. Wall, 80 Ga. 202, 7 S.E. 639. (3) The court erred in refusing instructions numbered 1, 2 and 3 requested by defendant. Tuley v. Railroad, 41 Mo.App. 436; Railroad v. Leftwich, 117 F. 128; Freeman v. Pere Marquette Co., 91 N. W. (Mich.) 1021; Smotherman v. Railroad, 29 Mo.App. 265; Auftenberg v. Railroad, 132 Mo. 566; Erwin v. Railroad, 94 Mo.App. 289. (4) The court erred in giving instructions numbered 1, 2, 3, 4 and 5 on part of plaintiff. Tuley v. Railroad, 41 Mo.App. 436; Prior v. Street Railway, 85 Mo.App. 367; Grocery Co. v. Sanders, 74 Mo.App. 659; Hirchner v. Collins, 152 Mo. 397; Goetz v. Railroad, 50 Mo. 472; Clay v. Railroad, 17 Mo.App. 629; Moore v. Railroad, 126 Mo. 178; Thomas v. Babb, 45 Mo. 384; Moore v. Streegel, 50 Mo.App. 308; McNamee v. Railroad, 135 Mo. 447; Cyclopedia of L. & P., 597; Lumber Co. v. Moss Tie Co., 87 Mo.App. 178; Herbert v. Mound City B. & S. Co., 90 Mo.App. 317; Greenleaf on Evidence (16 Ed.), 158; Railroad v. Canman, 52 Ark. 517; Shinn v. Tucker, 37 Ark. 589; Railroad v. Harwood, 80 Ill. 91; Rolling Mills v. Morrisy, 18 A. & E. Railway Cases 48; Railway v. State, 95 Md. 637; Railway v. Fry, 131 Ind. 319; Ballou v. Railroad, 54 Wis. 257; Baldwin v. Railroad, 50 Iowa 680; Railroad v. Flannigan, 77 Ill. 365; Cohn v. McNaulta, 147 U.S. 238.
D. P. Dyer, for respondent.
(1) It is well settled by the decision of appellate courts of this State that plaintiff herein by showing the breaking into of the train upon which he was a passenger and the consequent collision of the cars, resulting in his injury made out a prima facie case of negligence against defendant, and thus cast upon it the onus of relieving itself from liability by showing that the injury was the result of an accident which "the utmost skill, foresight and diligence could not have prevented." Hipsley v. Railway, 88 Mo. 348; Furnish v. Railway, 102 Mo. 438; Jackson v. Railway, 118 Mo. 224; Clark v. Railway, 127 Mo. 197. (2) There is, we submit no foundation whatever for appellant's contention that the prima facie case thus made out by plaintiff was "explained away" by the testimony of defendant's brakeman Gott, who was called as a witness in behalf of plaintiff. (3) And we may say here that in failing to continuously and carefully inspect these appliances whose faithful operation was so essential to the safety of passengers, the railroad company was grossly derelict in its duty. Furnish v. Railway, 102 Mo. 438; Guthridge v. Railway, 94 Mo. 468; Hipsley v. Railway, 88 Mo. 348; Wolfe v. Campbell, 110 Mo. 114; Schroeder v. Railway, 108 Mo. 322; Gibson v. Zimmerman, 27 Mo.App. 90; Rayl v. Krelick, 74 Mo.App. 245; Cleveland Co. v. Ross, 135 Mo. 101; Seehorn v. Bank, 148 Mo. 256. (4) Instruction No. 1 was properly refused for several reasons. Choate v. Railway, 67 Mo.App. 105; Payne v. Railway, 129 Mo. 405; Spillane v. Railway, 135 Mo. 414. (5) Instruction No. 2 was vicious for several reasons. (6) Instruction No. 3 was properly refused as not being applicable to the case. (7) Plaintiff's instructions were proper. See also Kirchner v. Collins, 152 Mo. 394, to the same effect. Instructions Nos. 2 and 3. Shuler v. Railway, 86 Mo. 618, 623.
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 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 become 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. It was admitted that the two cars that came uncoupled belonged to another road.
At the close of plaintiff's case and also after all the evidence had been heard, the defendant asked an instruction directing the jury to return a verdict in its favor, both of which the court refused. This action of the court is assigned as error. As defendant's evidence did not tend to strengthen plaintiff's showing, it will only be necessary to consider whether under all the evidence plaintiff was entitled to recover.
The law is that a railroad company engaged in the carriage of passengers, "is required so far as it is capable by human care and foresight to carry them safely, and it is responsible for all injuries to its passengers from even the slightest negligence on its part." And, "when a passenger suffers injuries received in the breaking down or overturning of the coach in which he is riding, a prima facie presumption arises that such casualty was caused by negligence on the part of the carrier, and the burden is on the latter to repel such presumption and to show that the injury was the result of inevitable accident or some cause which human precaution and foresight could not have averted." Clark v. Railway, 127 Mo. 197; Furnish v. Railway, 102 Mo. 438.
The defendant contends that the uncontradicted evidence of its employees to the effect that upon inspection after the occurrence in question it was found that both the air brake and coupling were in good condition, overturned plaintiff's prima facie case, and that the jury should have been so instructed. In Gannon v. Gas, 145 Mo 502, 46 S.W. 968, the holding was: But the decision in that case seems to be, if accepted in its broadest sense, in conflict with other decisions of the Supreme Court and the Courts of Appeal. Downey v. Railway, 94 Mo.App. 137; Glasscock v. Railway, 82 Mo.App. 146; Hite v. Railway, 130 Mo. 140; May v....
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