Malone v. St. Louis-San Francisco Railway Company
| Decision Date | 19 June 1919 |
| Citation | 213 S.W. 864,202 Mo.App. 489 |
| Parties | J. H. MALONE, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, W. J. Orr, H. D. Green and W. N. Evans for appellant.
J. L Bess for respondent.
The plaintiff sues for injuries received while a passenger on one of defendant's trains by being struck in the eye by a piece of coal or cinder. The train on which he was riding stopped at Thayer, Missouri, on a side track. Plaintiff was sitting by an open window and when another train or engine was passing turned to look out the window and was suddenly and violently struck in the eye by the coal cinder coming through this window. The defendant appeals from an adverse judgment.
The first point raised is that the plaintiff must fail in that the petition counts on specific negligence, to-wit, the excessive speed of the passing train and the evidence does not support such ground of negligence. The defendant seems to concede, and such is clearly the law, that in this class of cases, involving liability for accidents where the relation of carrier and passenger exists, only general allegations of negligence are required. [Hamilton v. Railroad, 114 Mo.App. 504, 509, 89 S.W. 893; Roscoe v. Metropolitan St. R. Co., 202 Mo. 576, 587, 101 S.W. 32; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062.]
In such cases when the plaintiff shows the accident and injury a presumption of negligence arises and the burden is cast on defendant to rebut such inference of negligence and to show that the injury was not occasioned by its negligence. [Sweeney v. Kansas City Cable Ry. Co., 150 Mo. 385, 51 S.W. 682; Roscoe v. Metropolitan St. R. Co., 202 Mo. 576, 101 S.W. 32.]
It should be noted, however, that in all cases where the burden of proof is on one party the evidence produced by the other party may lift or lighten the load. It is also true that if in such cases the plaintiff does allege specific grounds of negligence then he must try the case in the ordinary way, must prove the negligence alleged, must carry the burden of proof and recover if at all only by proof of such specific negligence. [Orcutt v. Century Bldg. Co., 201 Mo. 424, 443, 99 S.W. 1062; Hite v. Metropolitan St. Ry. Co., 130 Mo. 132, 31 S.W. 262, 32 S.W. 33; Gardner v. Metropolitan St. R. Co., 223 Mo. 389, 122 S.W. 1068.]
We think, however, that on a fair construction of plaintiff's petition he has not been thus caught in his own trap. The petition after alleging that plaintiff became a passenger on this train proceeds thus:
"And that while said train was so standing on the track of defendant, at the said station of Thayer, in the early morning of the 28th day of October, 1917, another locomotive passed at a high rate of speed, the same coming from the opposite direction from that being traveled by plaintiff, and that by reason of the negligence and carelessness of the employees, agents and servants of defendant, in so operating such locomotive and insufficient screens on windows of its cars and defective condition of its appliances and machinery, the true nature and extent of which is to the plaintiff unknown, a large cinder, clinker and hard substance was violently thrown from the said passing locomotive with great force and into the car in which plaintiff was then and there a passenger as aforesaid, and which said cinder, clinker and hard substance then and there struck plaintiff about the left eye, inflicting a serious wound, causing intense pain, impairing his sight and resulting in permanent injury thereto; that said injury was in nowise the result of neglect on part of plaintiff, but was solely due to the negligence and carelessness of defendant in failing to provide the very high degree of care and vigilance for the prevention of injuries to its passengers such as it was its duty to do."
As to the insufficient screens on the car window the plaintiff proved that the window was without screens but the court instructed, and properly so, that it was not negligence for defendant to fail to screen passenger coach windows. [Irwin v. Louisville & N. R. Co. (Ala.), 50 So. 62; Missouri, K. & T. Ry. Co. v. Orton (Kas.), 73 P. 63.]
Leaving out this specification of negligence or rather treating is as a fact pleaded and proven but not constituting negligence in itself, the petition merely alleges that, while defendant's passenger train in which plaintiff was sitting by an open window was standing on the track at this station, another locomotive passed at a high rate of speed and a large cinder or clinker was violently thrown from such passing locomotive into the car in which he was a passenger, striking him in the eye and inflicting the injury for which he sues, and that this was caused by the negligence and carelessness of the employees, agents and servants of defendant in so operating such locomotive and by the defective condition of the appliances and machinery, the true nature and extent of which is to plaintiff unknown; that such injury was not due to any negligence of plaintiff but was due to defendant's negligence and carelessness in failing to exercise the high degree of care due from carriers to passengers. The defendant lays much stress on the words "so operating" the locomotive and says it is limited to the "high rate of speed" previously mentioned and thus constructs a specific allegation of excessive speed as causing the injury. We think, however, that the petition does no more than state the facts which are within the plaintiff's knowledge, to-wit, that while he was a passenger on defendant's train standing at a station another train passed by at a high rate of speed and a large cinder from such passing engine was thrown violently through the open window and struck him in the eye inflicting injury, and then further alleges, what the law presumes in such cases, that this was due to defendant's negligence in operating such passing engine or to some defect in the machinery or appliances, and that defendant has failed to exercise the high degree of care for his safety which the law imposes. As said in Gurley v. The Mo. Pac. Ry. Co., 93 Mo. 445, 451:
"Of course the statement of the matters of inducement, the surroundings and situation of the parties, need not be coupled with an allegation of negligence."
The negligence in "so operating" the engine refers to its operation in general while passing the passenger coach and not that the speed alone caused the cinder to fly off and strike plaintiff. We are satisfied that the defendant did no so understand the petition and the case was not tried on any such theory.
Defendant's demurrer to the evidence raises the question of whether the facts pleaded and proven are sufficient to raise the presumption of negligence as between passenger and carrier. This question is not briefed by either party and we are left to our own investigation. All that plaintiff was able to show is that he was sitting next to an open window while the train was standing on the side track at the station of Thayer; that it was after midnight and another train or engine passed on the main track going some fifteen to twenty miles per hour that just as the engine passed the window plaintiff turned to look in that direction, but not putting his head out of the window, and something struck him violently in the left eye. The missile dropped in his lap and was picked up and preserved by plaintiff. It is described as a hot coal cinder or clinker more than an inch in length and breadth. Plaintiff's eye was bruised, burned and bloodshot and there is no question but that plaintiff was struck violently by this cinder being thrown violently through the window from the direction of and just as the other engine passed. The proximity and position of the passing engine strongly negatives the possibility of its coming from any other source. An experienced railroad man in the same coach and near plaintiff at the time of his injury and who saw everything except the missile coming through the window, testified without objection that in his opinion the clinker or cinder came from the passing engine. There is some uncertainty as to the exact date of this accident but by the evidence of the defendant's train dispatcher no other train or engine was at Thayer except a switch engine, though no explanation is given why this...
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