Jackmann v. St. Louis & H. Ry. Co.

• Decision Date: 05 July 1916
• Docket Number: No. 14350.,14350.
• Parties: JACKMANN v. ST. LOUIS & H. RY. CO.
• Court: Missouri Court of Appeals

187 S.W. 786

JACKMANN v. ST. LOUIS & H. RY. CO.

No. 14350.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Rehearing Denied July 18, 1916.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Mary Jackmann against the St. Louis & Hannibal Railway Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.

Hostetter & Haley, of Bowling Green, and Sutton & Huston, of Troy, for appellant. Creech, Penn & Palmer and Frank Howell, all of Troy, and Henry S. Caulfield, of St. Louis, for respondent.

REYNOLDS, P. J.

Action for damages for personal injuries alleged to have been sustained by plaintiff while a passenger on defendant's road.

The amended petition upon which the case was tried, avers that while plaintiff was a passenger on a passenger train of defendant and seated in a coach of the train, in transit from Troy to Silex, a portion of the train and especially the coach in which plaintiff was being carried as a passenger, was suddenly and violently and forcibly, and without warning to plaintiff, thrown from the track, brought to a sudden, violent and forcible stop and tilted to almost the point of capsizing or turning over; that by reason of this coach being thrown from the track she was violently and forcibly thrown from the seat she was occupying and down between that seat and the seat in front of her, whereby the bones, cartilages, ligaments and muscles of her right leg in and about the knee were injured, and she was bruised and wounded in and about her body and limbs and her nervous system greatly shocked. Charging that the injuries sustained by her were directly and "approximately" (sic) caused by the negligence and want of care on the part of defendant in permitting the train, and especially the coach occupied by plaintiff to leave the track, and that all these acts, omissions and failure and neglect on the part of defendant, directly and proximately contributed to cause plaintiff's injuries, and that the injuries sustained were permanent and that she does now and will continue to suffer great bodily pain and anguish of mind and has thereby been permanently incapacitated to go about and attend to her personal wants, and is permanently injured, crippled and diseased, and has incurred and will incur great expense for treatment, etc., she lays her damages at $15,000, for which she demands judgment.

The answer is a general denial.

A trial before the court and a jury, resulting in a verdict in favor of plaintiff for $7,500, judgment followed, and defendant, having interposed a motion for new trial, which was overruled, has duly appealed.

Fifteen assignments of error are made, going to the admission and exclusion of testimony and to the overruling of the motion for a new trial. Error is also assigned to the action of the court in giving an instruction (No. 1) at the instance of plaintiff.

We do not consider it necessary to notice all of these assignments, but will confine ourselves to a few of them which we consider most material.

Taking up this last assignment, as to error in the first instruction, which was a very long one and practically required the defendant to prove that the train and coaches were not overloaded, that its roadbed, tracks, trains, coaches, equipment and appliances were safe and sound, and that the train and coach were being run and operated by the exercise on the part of defendant with the highest degree of skill, knowledge, foresight, care, inspection and examination of its roadbed, tracks, train, coaches and appliances, it told the jury that unless they found defendant was at the time of the alleged injury to plaintiff, exercising its skill, knowledge and foresight in operating its train, their verdict should be for plaintiff. These particular matters are unnecessary. It is demanded of a railroad company carrying passengers to carry them safely and it is responsible for all injuries to the passengers arising from even the slightest negligence on its part, and when a passenger suffers injuries in consequence of the breaking down or overturning or derailment of the coach in which he is riding, the 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 a result of inevitable accident or some cause which human precaution or foresight could not have averted. See Norris v. St. Louis, I. Mt. & S. Ry. Co., 239 Mo. 695, 144 S. W. 783; Siegel v. Illinois Central R. R. Co., 186 Mo. App. 645, loc. cit. 653, 654, 172 S. W. 420; Nagel v. United Rys. Co., 169 Mo. App. 284, 152 S. W. 621. Defendant did not undertake to make any such defense and the inclusion of these matters in this instruction was improper, possibly misleading, to a certain extent, although hardly reversible error. We notice it here to avoid its repetition.

It is also charged that this instruction does not connect plaintiff's injuries with the accident. We do not find this defect in the instruction.

This case was tried on the theory, so far as defendant was concerned, that plaintiff did not receive the injuries of which she complains in consequence of the overturning of the coach in which she was a passenger, and that the injuries from which she was suffering were the result of disease. The testimony of medical experts was, therefore, very prominent in the case as meeting this, each party armed with their own experts, who, not unusually, made very different diagnoses of the case.

The accident is alleged to have happened August 29th, 1912.

A witness, Dr. Pendleton, called an examined on the part of plaintiff, testified that he had been first called in to examine plaintiff in December, 1912; visited her at her home in Silex. Afterwards, and at the time of the trial, which was commenced on October 14th, 1913, he had examined her again. He was asked on examination in chief by counsel for plaintiff, what he had found upon making his examination of her on the morning of the trial. He testified that she still complained of intense pain when the joint of her right knee was moved; found on measurement that the right knee was larger than the left and the right foot somewhat swollen. These questions, answers, objections and rulings then followed:

(By counsel for plaintiff.) Q. "I will ask you, Doctor, in your examination made in December, 1912, and the examination you made this morning, what is your opinion as to what is the...