Mitchell v. Chicago & A. Ry. Co.

• Decision Date: 23 June 1908
• Citation: 132 Mo. App. 143,112 S.W. 291
• Parties: MITCHELL v. CHICAGO & A. RY. CO.
• Court: Missouri Court of Appeals

112 S.W. 291

132 Mo. App. 143

MITCHELL v. CHICAGO & A. RY. CO.

St. Louis Court of Appeals. Missouri.

June 23, 1908.

1. CARRIERS — PASSENGERS ON FREIGHT TRAINS—CARRIER'S DUTY.

Though passengers upon freight trains assume such risks and hazards as are ordinarily incident to the operation of such trains, the carrier owes them the same high degree of care that it owes to passengers on regular trains, and a passenger on a freight train does not assume the peril arising from the negligence or want of proper care of those in charge of the train.

2. SAME — NEGLIGENCE—EVIDENCE—SUFFICIENCY.

That cars of a freight train were coupled so violently that a passenger sitting on a trunk near a side door of the caboose was thrown through the door to the ground, a water keg in the car was overturned, papers were jarred from the conductor's desk, and a lamp was jarred from its position, etc., warrants a finding that the company was negligent, though there is no proof of a specific negligent act on the part of those operating the train.

3. SAME.

That a jerk given a train on a coupling of cars was extraordinary and unusual tends to prove negligence in operating the train.

4. NEGLIGENCE—RES IPSA LOQUITUR.

Where a thing causing injury sued upon is shown to have been under the management of defendant or his servants, and the accident was such that in the ordinary course of things it would not have happened had those having the management used proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.

5. CARRIERS — INJURY TO PASSENGER ON FREIGHT TRAIN—RES IPSA LOQUITUR.

The res ipsa loquitur doctrine applies to injury received by a passenger on a freight train where cars were coupled so violently that he was thrown from a trunk on which he was sitting

in the caboose, through a side door, to the ground, a water keg in the car was overturned, etc.

6. NEGLIGENCE—STANDARD FOR MEASURING.

The conduct of an ordinarily prudent person is the standard for measuring negligence.

7. SAME—CONTRIBUTORY NEGLIGENCE.

Before contributory negligence will defeat recovery for negligent personal injury, the dangers must be so obvious that an ordinarily prudent man would not assume the situation.

8. CARRIERS — PASSENGERS — CONTRIBUTORY NEGLIGENCE.

A passenger on a freight train could assume that a coupling of cars of the train would be made without negligence.

9. SAME—PASSENGER'S DUTY.

A railway passenger need not exercise more than ordinary care for his own safety.

10. SAME—CONTRIBUTORY NEGLIGENCE—JURY QUESTION.

Whether it was negligent for a passenger on a freight train to sit on a trunk near an open side door of the caboose held under the evidence a jury question.

11. SAME.

Though negligent toward a passenger, a railway company is not liable for resulting injury if his failure to use ordinary care contributed to the injury.

12. SAME—INSTRUCTIONS.

In an action against a railway company for injury to a freight train passenger, an instruction that if he voluntarily sat near an open door of the caboose, etc., and was thrown from the the car by the jar made by a coupling, he could not recover, having been properly refused for failing to refer the jury to the conduct of a reasonably prudent man and the exercise of ordinary care for his own safety as the standard by which the passenger's conduct should be measured, it was not error to modify it by directing that, though he knew he was liable to be thrown from the car, he could recover unless he was thrown by a usual and ordinary jar.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by F. A. Mitchell against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Scarritt, Griffith & Jones, for appellant. P. H. Cullen, for respondent.

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 10-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 loquitor is not pertinent to the facts in proof. It is said that 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...