Marriott v. Missouri Pacific Railway Co.
| Decision Date | 07 February 1910 |
| Citation | 126 S.W. 233,142 Mo.App. 204 |
| Parties | ANN MARRIOTT, Respondent, v. MISSOURI PACIFIC RAILWAY CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
AFFIRMED.
Judgment affirmed.
Ben J Woodson and Martin L. Clardy for appellant.
Brewster Ferrell & Mayer for respondent.
Plaintiff and her husband were passengers on one of defendant's trains. This train collided with a train of the Chicago, Burlington & Quincy Railway Company, whereby plaintiff's husband was injured and from which injury, as she claims, he afterwards died. She instituted this action as his widow, for damages, and recovered judgment for seven thousand dollars in the trial court.
The collision occurred on the 18th of September, 1907, and is the same in which plaintiff herself was injured and whose case against this defendant was decided by us at this term of court. We there decided that there was substantial evidence tending to show negligence of defendant and that therefore the trial court properly refused a demurrer asked by defendant. We likewise examined objections to instructions given for plaintiff in that case and concluded such objections were not good. What we there said on the subject of the sufficiency of the evidence and the correctness of plaintiff's instructions, applies to and determines those matters in this case, since they are identical; and we refer to that case for the ground of our ruling these points against defendant in this case. And so we likewise refer to that case for a statement of the facts upon which the action is founded.
But an objection to the judgment arises in this case which could not have been made to the other and which calls for additional consideration. Defendant claims that deceased's death was not shown to be the result of the collision and that the finding of the jury that it was, was mere conjecture. As has been stated, the collision occurred on the 18th of September, at St. Joseph, Missouri. The deceased died in Utah on the 10th of January following. When the car of the other train struck the car in which plaintiff and deceased were, it threw him violently to the other side of the car, bruising his right side about the lower rib, but he immediately got up and went to plaintiff's assistance. He accompanied her from the car to a cab and thence to a distant part of the city. It was not supposed that he had suffered any substantial injury and he was not attended by a physician, though one examined him and found a bruised place on his side. He went about as usual though he complained from time to time of a pain in his side and back. In four days he went with plaintiff on a train to Stewartsville, about twenty miles distant. They were there three weeks and he went to St. Joseph several times and to Kansas City, sixty miles distant, at least once. At the expiration of three weeks he and plaintiff went to their home near Salt Lake City, Utah, arriving there about October 18th. Shortly before December 1st, he felt "unable to walk down town, a distance of three blocks," and on that day he went to bed and in about six weeks, January 10th, he died. A physician attended him, but it does not appear what he discovered or what treatment he gave or advised. It may be stated, generally, that there was evidence in plaintiff's behalf tending to show that deceased was sixty-five years old, and while before the collision he was a hale, hearty and robust man, rarely ever out of health, he complained from time to time after the collision until he got back to Utah and there his complaints continued and he began to show signs of failing strength. A swelling in his side appeared. Finally, as just stated, he took to his bed and in six weeks thereafter died. Two physicians gave their opinion, on hypothetical questions, that the death could reasonably have been caused by the injury received at the collision.
But as against this showing for plaintiff was that of defendant, consisting in part of the opinion of physicians that there was no connection between his death and the collision. These physicians were men of great learning and experience and well-merited reputation, but they had not attended upon deceased and only stated their opinions as founded upon hypothetical questions.
In such state of evidence we do not feel that we would be justified in declaring that no more appears than conjecture, or possibility of the death being the proximate result from the collision...
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