Jones v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 09 February 1909
• Court: Missouri Court of Appeals
• Parties: JONES v. ST. LOUIS, I. M. & S. RY. CO.

116 S.W. 4

135 Mo. App. 468

JONES v. ST. LOUIS, I. M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

February 9, 1909.

1. TRIAL (§ 252) — INSTRUCTIONS — EVIDENCE TO SUSTAIN.

Where, in an action for injuries sustained by a shipper accompanying a car load of melons, by the car door falling upon him, the shipper's own evidence showed that the door was intact when furnished and got out of repair during the trip, an instruction on a specification of negligence that the carrier furnished a car with a broken door was erroneous.

2. TRIAL (§ 251) — INSTRUCTIONS — ISSUES TO SUSTAIN.

Where a shipper accompanying a car load of melons was not injured while riding as a passenger, but while walking about the yards of the carrier at a station, an instruction that the carrier was bound to exercise the same degree of care for the shipper as was required as to passengers on passenger trains, except that the shipper must submit to the dangers and inconveniences incident to traveling on a freight train, was outside the issues.

3. CARRIERS (§ 283) — INJURIES TO PASSENGERS — NEGLIGENCE.

The inference that a car repairer negligently pushed up a car door which he had been requested to repair by the shipper accompanying the car, whereby it was caused to fall on the shipper and injure him, is unwarrantable, where it does not appear that it was unnecessary to lift the door to see how it could be repaired, or that it was unskillfully lifted.

4. NEGLIGENCE (§ 119) — ACTIONS — PETITION — SUFFICIENCY.

An omission of a duty not counted on in the petition in a personal injury action is not available as a ground of recovery.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Personal injury action by Talamachus M. Jones against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

James F. Green, for appellant. M. G. Gresham and Geo. B. Parsons, for respondent.

GOODE, J.

In August, 1905, this plaintiff shipped a car load of watermelons over defendant's railway from Morley, in Scott county, to St. Louis as the point of destination. He was accorded the privilege of peddling the melons at stations on the way. For this purpose he went along as a passenger on the train, and prior to reaching the station of De Soto observed the door of the car containing his melons hung by only one hinge, or "hanger," as the witnesses say. Plaintiff testified the door came off a hinge while in transit. The train arrived at De Soto after dark, and plaintiff's car was pulled opposite the passenger depot. He got off the car at De Soto and looked about the railway yards, believing he would find car repairers or inspectors who would adjust the hanging of the door. He asked two workmen he met in the yards if they were car repairers or inspectors, and on receiving an affirmative answer told them of the door of his car being out of order and that he wanted it fixed. He and those two men walked back to the car, and as the car door was taken hold of by one of the three, or was about to be, it fell on plaintiff, cracking his skull, his testimony goes to prove, though there is other testimony which looks like the injury was slight. Just what caused the fall of the door is uncertain, and different conclusions might be drawn from the evidence, some of which tends to prove...