Kansas City Southern Ry. Co. v. Clinton

• Decision Date: 06 July 1915
• Docket Number: 4424.
• Citation: 224 F. 896
• Parties: KANSAS CITY SOUTHERN RY. CO. v. CLINTON. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

224 F. 896

KANSAS CITY SOUTHERN RY. CO. v. CLINTON. ^[1]

No. 4424.

United States Court of Appeals, Eighth Circuit.

July 6, 1915

[Copyrighted Material Omitted]

James B. McDonough, of Ft. Smith, Ark. (S. W. Moore, of Kansas City, Mo., on the brief), for plaintiff in error.

James D. Head, of Texarkana, Ark. (Elmer J. Lundy, of Mena, Ark on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

TRIEBER District Judge.

It is claimed that the court erred in refusing to direct a verdict for the defendant. There is substantial evidence that the plaintiff was a passenger on one of the defendant's local freight trains, which carries passengers in a caboose carried for that purpose; that he was seated in the caboose, as required by the rules of the company; that when the train approached an intermediate station it slowed down to about two or three miles an hour, and when within about two car lengths of the depot a Mr. Ellis, one of the passengers on the train, arose from his seat next to that of the plaintiff and while in the act of picking up his grips there was a sudden stop and an extraordinary jerk, which threw Mr. Ellis against him with such violence that he sustained the serious injuries complained of. Two physicians, one who had treated him, and another who had made an examination of his person, testified to his injuries, which were principally internal. Another party, Mr. Woodell, also testified to the violence of the jolt and the falling of Mr. Ellis on the plaintiff. Other witnesses for the plaintiff testified that before the accident he was a strong, healthy man, and worked in a sawmill, but that since the accident he had lost about 40 pounds in weight and is unable to do such work as he was engaged in before the injury, or any hard work. On the part of the defendant evidence was introduced tending to show that the jolt was not unusual, but only such as is usual when a freight train comes to a stop. There was no evidence whatever that the plaintiff was guilty of contributory negligence.

Prima facie, when a passenger on a railroad train is injured by reason of an unusual occurrence on the train on which he was riding, negligence on the part of the carrier is presumed, and the burden of proof shifts to the company to show that it was not guilty of negligence. Railroad Company v. Pollard, 22 Wall. 341, 22 L.Ed. 877; Gleason v. Virginia Midland R.R. Co., 140 U.S. 435, 443, 11 Sup.Ct. 859, 35 L.Ed. 458; Kirkendall v. Union Pacific R.R. Co., 200 F. 197, 118 C.C.A. 383, and authorities there cited. The evidence being conflicting, it was the duty of the court to submit that issue to the jury under proper instructions, especially in view of the statute of Arkansas enacted in pursuance of constitutional requirement. Section 12, art. 17, Constitution of Arkansas. The statute (section 6773, Kirby's Digest of the Laws of Arkansas) reads: 'All railroads which are now or may be hereafter built and operated in whole or in part in this state shall be responsible for all damages to persons or property done or caused by the running of trains in this state.'

This statute has been construed by the Supreme Court of Arkansas in numerous cases to the effect that:

'Where an injury is caused to a passenger by the operation of a train, a prima facie case of negligence is made against the company operating such train. ' Barringer v. Railway Co., 73 Ark. 548, 85 S.W. 94, 87 S.W. 814; Kansas City Southern Railway Co. v. Davis, 83 Ark. 217, 103 S.W. 603; Railway Company v. Briggs, 87 Ark. 581, 113 S.W. 644.

There was no error committed in refusing to direct a verdict for the defendant.

It is next claimed that the court erred in permitting the plaintiff and another passenger in that caboose to testify as to the violence of the jolt, for the reason that they were not experts on that question. The plaintiff testified that he had been riding in cabooses on local freight trains frequently for a period of six or seven years, and that was 'the severest jolt he ever got on a train of any kind. ' Mr. Woodell, another passenger, testified that he had been a traveling salesman for a number of years, and while such he had been riding on local trains probably once a week, and that this jolt 'was more severe than I have seen since. ' He also testified that the jolt was of such force that it threw him down. This evidence was clearly admissible. It is true they were not experts, but they had frequently ridden on such trains, and their testimony on this point was properly admitted, leaving it to the jury to determine what weight it should be accorded. It is hardly reasonable to expect that passengers will carry experts with them in order that they may testify in case of an accident. That such evidence is admissible see Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612, 624, 4 Sup.Ct. 533, 28 L.Ed. 536; Queenan v. Oklahoma, 190 U.S. 548, 23 Sup.Ct. 762, 47 L.Ed. 1175; Turner v. American Security & Trust Co., 213 U.S. 257, 260, 29 Sup.Ct. 420, 53 L.Ed. 788; Union Pacific R.R. Co. v. Lucas, 136 F. 374, 69 C.C.A. 218; Robinson v. Louisville, etc., Ry. Co., 112 F. 484, 50 C.C.A. 357; Rothe v. Pennsylvania Company, 195 F. 21, 114 C.C.A. 627; Moore v. Saginaw, etc., R.R. Co., 115 Mich. 103, 72 N.W. 1112; Southern Railway Co. v. Vandegriff, 108 Tenn. 14, 64 S.W. 481; St. Louis, I.M. & S. Ry. Co. v. Osborne, 95 Ark. 310, 129 S.W. 537.

It is also claimed that the court erred in permitting the witness Woodell to testify that at the time of the accident he heard the plaintiff, when arising from the fall, say, 'I believe the train hurt me. ' This was admissible as part of the res gestae. Delaware, L. & W.R.R. Co. v. Ashley, 67 F. 209, 14 C.C.A. 368; Guild v. Pringle, 130 F. 419, 64 C.C.A. 621.

It is next claimed that the court erred in permitting Dr. Hilton, the physician and surgeon who had treated the plaintiff for this injury, to testify that the plaintiff suffered a great deal from pain, upon the ground that this opinion was based upon statements made to him by the patient. Union Pacific Ry. Co. v. McMican, 194 F. 393, 114 C.C.A. 311, decided by this court, is relied on to sustain this assignment of error. But in that case what the court did decide was that a physician who did not treat the patient, but was only called to examine him for the purpose of testifying as an expert, can only testify to objective symptoms; but as to a physician called professionally to treat a person the court in that case said:

'The rule is well settled that, where a physician is called to professionally treat a party, he may give his opinion, based upon subjective as well as objective symptoms.'

A physician must frequently rely on the statements of his patient in order to diagnose his case properly, and especially when the injuries are, as in this case, internal, and his opinion, based on such statements, made to him for the purpose of enabling him to treat the patient, is clearly admissible.

Nor did the court err in permitting Dr. Hilton to answer the hypothetical question propounded to him. The objection is:

'The question failed to embrace all the essential undisputed facts which appeared in the issue.'

In our opinion it did.

It is also claimed that the court erred in permitting the plaintiff to give a practical illustration of his condition before the jury. There was no error in this. Birmingham R., Light & Power Co. v. Rutledge, 142 Ala. 195, 39 So. 338; Adams v. City of Thief River Falls, 84 Minn. 30, 86 N.W. 767; Carr v. American Locomotive Co., 26 R.I. 180, 58 A. 678; Schroeder v. Railroad Company, 47 Iowa, 375; Osborne v. City of Detroit (C.C.) 32 F. 36. This last case was reversed by the Supreme Court (135 U.S. 492, 10 Sup.Ct. 1012, 34 L.Ed. 260), but not on this point.

An error in the charge of the court complained of is that the charge imposed on the carrier a higher degree of care than the law demands of local freight trains carrying passengers in a caboose. Defendant, in its assignment of errors, selects only one sentence of the charge on that subject. This is not permissible. The charge must be taken as a whole, and if it then stated the law correctly there is no cause for complaint. Choctaw, O. & G.R.R. Co. v. Tennessee, 191 U.S. 326, 24 Sup.Ct. 99, 48 L.Ed. 201; Guild v. Andrews, 137 F. 369, 70 C.C.A. 49; Chicago, Great Western Ry. Co. v. McDonough, 161 F. 657, 88 C.C.A. 517; Truelock v. Willey, 187 F. 956, 112 C.C.A. 1. The charge of the court on that issue was:

'Under the laws of the state of

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