Mitchell v. Chicago & Alton Railway Company

• Decision Date: 23 June 1908
• Citation: 112 S.W. 291,132 Mo.App. 143
• Parties: MITCHELL, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

112 S.W. 291

132 Mo.App. 143

MITCHELL, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 23, 1908

Appeal from Audrain Circuit Court.--Hon. Jas. D. Barnett, Judge.

AFFIRMED.

Judgment affirmed.

John T Baker and Scarritt, Scarritt & Jones for appellant.

Defendant's peremptory instruction should have been given because plaintiff failed to prove any negligence on the part of defendant. Not a witness pretends to testify that any improper thing was done by the train crew in making the coupling in question. Hedrick v. Railroad, 195 Mo 104; Wait v. Railroad, 165 Mo. 612; Bartley v Railroad, 148 Mo. 124; Hite v. Railroad, 130 Mo. 132; Portuchek v. Railroad, 101 Mo.App. 52; Erwin v. Railroad, 94 Mo.App. 291; Saxton v. Railroad, 98 Mo.App. 494; Shields v. Railroad, 87 Mo.App. 646; Guffey v. Railroad, 53 Mo.App. 462; Olds v. Railroad, 172 Mass. 73; Railroad v. Arnol, 144 Ill. 261. From a great number of cases holding that a passenger is guilty of contributory negligence if he voluntarily assumes an unnecessarily hazardous position on a train, the following may be cited: Aufdenberg v. Railroad, 132 Mo. 565; Harris v. Railroad, 89 Mo. 233; Smotherman v. Railroad, 29 Mo.App. 265; Ashbrook v. Railroad, 18 Mo.App. 290; Tuley v. Railroad, 41 Mo.App. 436; Carroll v. Transit Co., 107 Mo. 653; Railroad v. Rice, 9 Tex.App. 509; Wallace v. Railroad, 98 N.C. 494; Railroad v. Ferguson, 70 Va. 241; Hickey v. Railroad, 14 Allen 431.

P. H. Cullen for respondent.

The proof in this case showed an extraordinary and unusually severe jolt and made at a time when defendant knew that passengers were in the compartment from which plaintiff was thrown and hence made a prima-facie case of negligence. Harris v. Railroad, 89 Mo. 235; Murphy v. Railroad, 43 Mo.App. 478; Dougherty v. Railroad, 9 Mo.App. 478; Dougherty v. Railroad, 81 Mo. 325; Guffey v. Railroad, 53 Mo.App. 465; Dorsey v. Railroad, 83 Mo.App. 528; Tuley v. Railroad, 41 Mo.App. 436. Under the rules of logic and of law plaintiff made a prima-facie case of negligence. Fullerton v. Railroad, 84 Mo.App. 499. The same degree of care is due a passenger on a freight train that is due a passenger on a regular train; except, passengers on freight trains accept and acquiesce in the usual incidents and conduct of a freight train, managed by prudent men. Vancleve v. Railroad, 107 Mo.App. 96; Wait v. Railroad, 165 Mo. 621; McGee v. Railroad, 92 Mo. 208; Whitehead v. Railroad, 99 Mo. 263; Gufft v. Railroad, 53 Mo.App. 462; Wait v. Railroad, 65 S.W. 1028; Erwin v. Railroad, 68 S.W. 88. And the same presumptions arise as in case of regular passengers. Woolery v. Railroad, 107 Ind. 381; 27 Am. and Eng. R. Cas., 210; 57 Am. 114; 8 N.E. 226; Thomp., Neg. (2 Ed.), secs. 2901 to 2907.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

This is an action for damages alleged to have accrued to plaintiff because of personal injuries received through being precipitated from his seat in the caboose of defendant's freight train. Plaintiff recovered and defendant prosecutes the appeal.

The evidence tended to prove that defendant maintains a branch line of its railroad from Mexico to Cedar City in this State upon which it operates a freight train with a caboose attached for the purpose of carrying passengers. The plaintiff became a passenger on this train at New Bloomfield, destined to the city of Mexico. The caboose is separated into two compartments by means of a partition. About two-thirds of the car is provided with seats for passengers and the remaining one-third thereof occupied for the purpose of carrying express and United States mail as well as passengers. On either side of the car there is a door about five feet in width. On the date in question, each of these doors was standing open, as is usual in the summer time. Upon entering the car, plaintiff chose a seat upon the expressman's box or trunk near one of these doors and was there seated when the conductor collected his fare. The train progressed to the city of Fulton, at which station it stopped for some time for the purpose of transacting business. While the locomotive was engaged in switching at Fulton, plaintiff went out upon the depot platform for the purpose of purchasing a newspaper and while there, observed that the caboose was standing with about six cars on the main line of the track and the locomotive, with other cars attached thereto, was detached from that portion of the train to which the caboose was connected. The locomotive was engaged in switching and picking up several cars of stock. Plaintiff returned to the caboose and resumed his seat as before, upon the expressman's box. Other passengers were occupying that portion of the car as well, and he was engaged in conversation with a gentleman who was leaning against the partition of the car. It is proper to say here that the two compartments of the car communicated by means of a door which remained open, and that the compartment occupied for the purpose of express in which the plaintiff was seated, was constantly used for passenger service as well. The train was headed northward. The expressman's box on which the plaintiff was seated was situate immediately adjacent to and on the east side of the car and also immediately north of the open door, which was about five feet in width, on the east side of the car. In this situation, plaintiff was seated with his back to the northward, the direction the train was going, with his feet to the southward, and more particularly directed toward the center of the car. While thus seated and in conversation with his fellow-passenger, the locomotive with about six cars attached, endeavoring to make an automatic coupling, backed with great force against the freight cars to which the caboose was attached, and thereby precipitated plaintiff from his seat through the side door of the car onto the ground, inflicting the injuries complained of. The evidence tended to prove that this coupling was made with great force and produced an extraordinary jerk, jar and rebound of the caboose. The plaintiff and several passengers gave evidence to the effect that although they were familiar with the operation of freight trains and frequent passengers thereon, it was the most severe and extraordinary jerk they had ever experienced. Plaintiff testified substantially that the jar came just like a crash and threw him off of the box, out of the door onto the ground. There was a loud noise. It was almost like a wreck. It was the most severe jerk he had ever experienced riding on any kind of train and threw him across the floor and then hurled him out of the side door. Another passenger who was seated in the passenger compartment, said he rode on freight trains a great deal and had "never felt a more severe jar except once at Joliet, when the engineer knocked out a drawhead." The effect of the jar was very great, and caused him to suffer backache and headache so that he could not sleep that night or the next. Another witness said it was "almost like a collision and threw the passengers around right smart," and a ten-gallon water keg containing ice and water was overturned and the water ran over the floor. It knocked papers out of the conductor's desk and pigeon-holes, jarred the lamp chimneys loose from their clamps near the ceiling of the car and jarred a pair of gloves off the conductor's desk. It caused him to have a headache. He testified he had ridden on freight trains considerably and had observed them making couplings, but that this was the heaviest jar he had ever experienced. All of the witnesses testified that besides precipitating the plaintiff from his seat through the door of the car onto the ground, the effect of the collision was sufficient to and did overturn the water keg in the car, jarred the lamp chimneys from the clamps provided to hold them in position, as well as causing numerous papers and a pair of gloves on the conductor's desk and other papers in pigeon-holes, to fall and scatter over the floor of the car. There was no other evidence tending to support the allegations of negligence of the defendant than that above stated. It is therefore argued on the part of the defendant that the court should have peremptorily directed a verdict for it for the reasons: first, that the case is devoid of evidence tending to prove negligence on the part of defendant with respect to a defective track, imperfections in the car or apparatus, or unskillful handling of the locomotive or cars by the engineer or other trainmen; and second, that the doctrine of res ipsa loquitur is not pertinent to the facts in proof. It is said even though the law imposes a high degree of care upon the defendant in favor of the passenger on a freight train, as it does on other passenger conveyances, that it is not responsible for injuries inflicted resulting from the usual jerks and jars incident to their operation. In other words, the argument invokes the rule to the effect that a person, by taking passage on a freight train, assumes all of the risks and inconveniences ordinarily incident to the operation of trains of that character. Indeed, it is the law that persons taking passage upon freight trains, assume such risks and hazards as are ordinarily incident to the operation of such trains. In the very nature of things, there cannot be the same immunity from peril in traveling upon freight trains as there is in traveling upon passenger trains. Nevertheless, if the carrier accepts passengers on such trains, it thereby assumes toward its patrons an obligation of a high degree of care, precisely as it does when prosecuting its calling of carrying passengers on its regular passenger trains. The measure of care, however, is...