Johnson v. St. Louis & San Francisco Railroad Co.
| Decision Date | 02 July 1915 |
| Citation | 178 S.W. 239,192 Mo.App. 1 |
| Parties | SAM JOHNSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. F Evans, Moses Whybark and A. P. Stewart for appellant.
(1) The court erred in overruling the demurrer to the evidence interposed by defendant at the close of plaintiff's case and in refusing defendant's request for a peremptory instruction at the close of all the evidence. Ervin v Railroad, 94 Mo.App. 289; Portuchek v. Railroad, 101 Mo.App. 52; Shields v. Railroad, 87 Mo.App. 646; Wait v. Railroad, 165 Mo. 612; Hedrick v. Railroad, 195 Mo. 104; Guffey v. Railroad, 53 Mo.App. 462; Saxton v. Railroad, 98 Mo.App. 503; Pryor v. Railroad, 85 Mo.App. 367; Bartley v. Railroad, 148 Mo. 124; Hite v. Railroad, 130 Mo. 132. (2) The court erred in giving instruction number 1 on the part of plaintiff. This instruction is not supported by the evidence. Authorities under point 1; Hamilton v. Railroad, 114 Mo.App. 508. (3) Instruction number 2 given for plaintiff on the measure of damages is erroneous. Wachter v. Railroad, 113 Mo.App. 281; Diel v. City of Ferguson, 158 Mo.App. 286. (4) The court erred in admitting testimony as to plaintiff's loss of sexual powers, because such testimony was not within the purview of the pleadings. Black v. Railroad, 217 Mo. 687; Moore v. Trans. Co., 226 Mo. 689; Price v. Railroad, 220 Mo. 464. (5) The verdict is grossly excessive, and is the result of passion and prejudice on the part of the jury. Black v. Railroad, 217 Mo. 687; Taylor v. Railroad, 185 Mo. 257; Neff v. City of Cameron, 213 Mo. 366; Gay v. Railroad, (Wis.), 120 N.W. 283.
Bradley & McKay for respondent.
(1) The court committed no error in overruling the demurrer to the evidence interposed by appellant at the close of respondent's case, and in refusing appellant's request for a peremptory instruction at the close of all the evidence. (a) The pleadings and facts, as disclosed by the record in this case, does not bring it within the rule announced in the cases cited by appellant under point number one. The doctrine of res ipsa loquitur applies to this case. Eroin v. Railroad, 94 Mo.App. 289; Hedrick v. Railroad, 195 Mo. 104; Wait v. Railroad, 165 Mo. 612. (b) Where a railroad company carries passengers for hire on its mixed trains it must exercise the same degree of care for their safety as is required in the operation of its regular passenger trains. Hedrick v. Railroad, 195 Mo. 104; Wait v. Railroad, 165 Mo. 612; Whitehead v. Railroad, 99 Mo. 263; McGee v. Railroad, 92 Mo. 208; Erwin v. Railroad, 94 Mo.App. 289. (c) If there is any evidence it must go to the jury who are the exclusive judges of its weight and sufficiency, however slight it may be and whether it be direct or inferential. Twohey v. Fruin, 96 Mo. 104; Charles v. Patch, 87 Mo. 450; Lee v. Knapp & Co., 137 Mo. 385; Taylor v. Short, 38 Mo.App. 21; George v. Railroad, 40 Mo.App. 433; Hadley v. Orchard, 77 Mo.App. 141; Powers v. Transit Co., 202 Mo. 280. (d) There is at least an implied contract on the part of a railway company to safely carry its passengers. Sweeney v. Cable Co., 150 Mo. 385; Dougherty v. Railroad, 81 Mo. 325. (e) The fact that respondent was injured while being carried as a passenger on defendant's mixed train and after the train had reached the station and the station had been announced by the servants in charge thereof and respondent with other passengers were leaving said train makes it a prima-facia case, and the burden of proof is then cast upon defendant to relieve itself of the responsibility of showing that the injury was the result of an accident which ordinary care, forethought and diligence could not have prevented, which it did not attempt to do, but on the contrary the men in charge of said train did not affirm or deny that the train was negligently backed as stated in respondent's petition and the cause ought to have gone to the jury. Guffey v. Railroad, 53 Mo.App. 462; Lemon v. Chanslor, 68 Mo. 340; Coudy v. Railroad, 85 Mo. 79; Furnish v. Railroad, 102 Mo. 438. (f) A common carrier, though not an insurer of the safety of its passengers is held to the exercise of the highest degree of care in protecting them from injury. The right of action, however, that accrues to the passenger injured while being served by the carrier, is founded in negligence but from the character of the relation a presumption of negligence arises from the fact of injury that throws the burden upon the carrier to establish upon its part the exercise of the degree of care required, and according to the testimony offered by the servants in charge of the train, the train was negligently backed after it reached the station and was stopped, and the case ought to have gone to the jury. Hamilton v. Railroad, 114 Mo.App. 508. (2) The court did not err in admitting testimony as to respondent's loss of sexual powers, because such testimony was shown by the evidence to be the natural result of such injuries. Moore v. Transit Co., 226 Mo. 705.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff at Kennett, Missouri, while a passenger upon a train operated by defendant. There was a verdict and judgment below for plaintiff in the sum of $ 5000, and the case is here upon defendant's appeal.
On or about November 18, 1912, plaintiff was a passenger upon a mixed train, i. e., a train made up of a number of freight cars and carrying a passenger coach at the rear thereof, having taken passage thereupon at Senath, Missouri, for transportation to Kennett. The injuries for which he sues are alleged to have been inflicted upon him while he was attempting to pass along the aisle of the passenger coach, after the train had been brought to a stop at the station at Kennett, and after defendant's agents and servants had announced its arrival at said place.
The allegations of negligence contained in the petition are to the effect that the defendant stopped the train for the purpose of permitting passengers to alight at the station at Kennett, whereupon plaintiff, together with other passengers, "started to leave said train, and while exercising due care on his part in attempting to leave the train, the defendant company, by its agents, servants and employees, in charge of said train, and without any warning whatever, negligently and carelessly caused said train to suddenly move backward thus and thereby throwing plaintiff violently across a seat or seats in said train or coach and injuring him." The petition also avers that the defendant is a common carrier engaged in interstate commerce, by reason whereof it became its duty "to at all times have the air appliances on its train in good condition so that the train might be controlled by the operation of the engine;" and it is alleged that the defendant negligently permitted the air appliances to become defective, out of repair and not properly connected "on the rear of the train and immediately in front of the coach of said train," which defendant knew, or by the exercise of ordinary care could have known. And it is alleged that plaintiff's injuries and loss, specifically set out in the petition, were "directly caused and occasioned by the carelessness and negligence of the defendant company, as aforesaid, in backing the forward part of its train up, as aforesaid, and permitting the air appliances and connection to become impaired."
The evidence tends to sustain the charge of negligence to the effect that defendant's agents and servants in charge of its train failed to hold the same stationary for a reasonably sufficient time to allow plaintiff and other passengers to alight, but on the contrary negligently caused the cars to be suddenly and violently moved backward while plaintiff and others were attempting to leave the passenger coach. The testimony of plaintiff and other passengers is that the station was announced, and that the train came to a full stop, with the passenger coach beside the station platform, and remained stationary for a time, and that these witnesses and other passengers had left their seats and were proceeding along the aisle of the passenger coach when the train was suddenly and violently moved backward whereby many occupants of the car were thrown from their feet. The testimony, aside from mere conclusions of the witnesses, goes to show that the lurch or jar was extraordinarily violent and sudden, and entirely without warning. The testimony varies as to the length of time during which the car remained stationary before the sudden backward movement thereof, but some of the witnesses say that the car stood still for the period of about one minute before the "crash" came. It is unnecessary to review the evidence in detail touching the matter, for it is altogether clear that it is ample to sustain the negligence charged in this respect, to-wit, in suddenly backing the train after it had come to a standstill and had remained stationary for a time, and while plaintiff was attempting to leave the passenger coach.
The evidence in the record is not such as to cast liability on defendant for failure to equip its cars with air appliances. There is no evidence to show any violation of the Interstate Commerce Law in this respect, and the trial court properly so ruled. Touching this matter plaintiff adduced no evidence. Defendant's evidence shows that upon one occasion, at about this time, this same train was run into Kennett with the air appliances unconnected on the passenger coach and the freight car immediately in front of...
To continue reading
Request your trial
-
Connor v. Kansas City Railways Company
...of functions mentally. Bergfeld v. Dunham, 202 S.W. 253; Provance v. Railway, 186 S.W. 955; Shafer v. Railway, 192 Mo.App. 502; Johnson v. Railway, 192 Mo.App. 1; Hall v. Coke Co., 260 Mo. 351. (b) In permitting Boyer to testify that plaintiff was irrational, hysterical and talked incoheren......