New York Cent. R. Co. v. Johnson

• Decision Date: 02 July 1928
• Docket Number: 8021.,No. 8020,8020
• Citation: 27 F.2d 699
• Parties: NEW YORK CENT. R. CO. v. JOHNSON (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

27 F.2d 699 (1928)

NEW YORK CENT. R. CO. v. JOHNSON (two cases).

Nos. 8020, 8021.

Circuit Court of Appeals, Eighth Circuit.

July 2, 1928.

A. S. Marley, of Kansas City, Mo. (W. Haley Reed, of Kansas City, Mo., and Sidney C. Murray and M. A. Jersild, both of Chicago, Ill., on the brief), for plaintiff in error.

Price Wickersham, of Kansas City, Mo. (John H. Atwood, Oscar S. Hill, and C. C. Chilcott, all of Kansas City, Mo., on the brief), for defendants in error.

Before KENYON, Circuit Judge, and SYMES and MARTINEAU, District Judges.

SYMES, District Judge.

These two cases are here by separate writs of error, sued out by the railroad company from separate judgments entered in the District Court of the United States for the Western District of Missouri, in favor of the respective plaintiffs below, defendants in error here. The two actions were consolidated, tried as one, and the errors complained of are the same in both.

No. 8020 was brought by Edward H. Johnson to recover damages as the husband of Myrtle J. Johnson, for injuries alleged to have been sustained by her, while riding on one of defendant's trains as a passenger, by reason of alleged negligence of the railroad company.

In No. 8021, Myrtle J. Johnson, plaintiff below, seeks to recover damages alleged to have been suffered by her by reason of the same alleged negligence of the railroad company.

Myrtle J. Johnson, in company with her sister-in-law, Imogene Johnson, was riding on a so-called "extra fare, solid Pullman train" of the defendant company, en route from Harmon, N. Y., to Chicago, Ill. The ladies spent the evening in the club car, and between 11 and 12 p. m., repaired to their berth, lower 8, car 64, located on the right-hand side of the train as it traveled west. Imogene Johnson seated herself on the edge of the berth with a suitcase open before her, taking out their night clothes, when, according to the evidence of the two ladies, the speed of the train was suddenly checked, and then accelerated. At the same time, Myrtle J. Johnson was standing in the aisle near the foot of the berth, holding in her right hand several folds of the curtains in order to steady herself, facing and talking to Imogene. The two women describe what happened as a terrible jerk, as though the train was going to stop, but did not; then a yank, and that the train lurched as it went on again. Imogene Johnson fell across the berth and towards the foot, while Myrtle was thrown three or four feet into the aisle of the sleeper towards the opposite berth. Myrtle testified:

"I was standing there holding on to the curtain with my right hand; had it just below the upper berth, just holding it below the upper berth, and securing it on the board that separates the two berths and my left hand on my hip. The train gave an awful jerk and jolt and a terrible lurch. And I had my hand hold of the curtain just below the lower part of the upper berth, and held it up against the board that separates the two berths from one another, and my left hand on my hip, and this train gave a sudden violent lunge as though it stopped, and threw my whole body around and threw my head up against the edges of the upper berth with such force it knocked my head down on my shoulders, and then it threw me with such force that it finally threw me to the floor."

Imogene said: "This was the most extraordinary jerk, lurch, lunge, and jolt that I have ever experienced. The sudden lurch * * * swung her Myrtle around. She was trying to hang on to the curtain." Imogene scrambled to her feet, and according to her testimony heard Myrtle moaning, and found her "rocking back and forth in the aisle, saying `Oh, my head! Oh, my head!'" etc. She assisted Myrtle up and into the berth, rubbed her head, talked to her, helped her to undress and get to bed. There were no other eyewitnesses to these happenings.

The two ladies occupied the same berth and slept till nearly noon the next morning. Imogene says that upon awakening she found Myrtle paralyzed on her entire right side. Her face was drawn, as if something had pulled it to one side, and she was uttering inarticulate sobs, crying, etc. A doctor was not obtainable until the arrival of the train at Chicago. Myrtle Johnson was carried out of the Pullman, put in a wheel chair, taken to another station, and with her companion boarded the Santa Fé train to Kansas City. Upon her arrival there she was taken to Grace Hospital. According to Imogene Johnson, "up to this time Myrtle was unable to talk, one-half of her tongue being paralyzed." The case was diagnosed as œdema of the brain, resulting from injury, causing a partial paralysis of the right side.

The members of the train crew — i. e., the conductor, porter, maid, and brakeman — testifying for the railroad company, said they did not recall any unusual jar or sudden jerk at the time in question. It is sufficient to say that there was a square conflict of evidence as to the actual happenings. The evidence of these employees, who were not eyewitnesses, was necessarily of a negative character, nor was the matter called to their attention until some time later. Separate verdicts were rendered in favor of Myrtle Johnson and Edward Johnson.

Thirty alleged errors in the conduct of the trial are set out in the specifications. Those requiring attention may be classified under three heads: (1) Refusal of the court to direct a peremptory verdict in favor of the defendant at the close of the plaintiff's case, and at the close of all the evidence. (2) The admission of incompetent evidence offered by the plaintiff. (3) Improper argument to the jury by counsel for the plaintiff. The specifications of error are practically identical in both cases.

1. The sole question here is: Had the plaintiff established a prima facie case, and, if so, was this situation changed at the conclusion of all the evidence? The plaintiff and her sister-in-law gave a most graphic description of the accident. That the plaintiff was thrown, and suffered injuries of a more or less grievous and permanent nature, is not disputed. So we inquire: Did the accident result from some unusual or extraordinary happening; such as a sudden stopping, starting, or jerking of the train, beyond what might ordinarily be expected by passenger under all the surrounding circumstances, which...