Pointer v. Mountain Railway Construction Co.

Citation189 S.W. 805,269 Mo. 104
PartiesLEONARD B. POINTER, Appellant, v. MOUNTAIN RAILWAY CONSTRUCTION COMPANY
Decision Date04 December 1916
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.

Affirmed.

James J. O'Donohoe for appellant.

(1) The law holds the defendant to the highest degree of care and applies the doctrine of res ipsa loquitur. Tenn. State Fair Assn. v. Hartman, 183 S.W. 735; Hartman v Tenn. State Fair Assn., 183 S.W. 733, citing Hollis v. K. C. Assn., 205 Mo. 508; Best Park Co. v Rollins, 68 So. 417; Chesapeake Beach Ry. Co. v. Brez, 39 App. D. C. 58; Lee Line Steamers v. Robinson, 218 F. 563; Hughes v. Railroad, L. R. A. 1916A, 927, and note. The maxim res ipsa loquitur applies to many other classes of cases. Seiter v. Bischoff, 63 Mo.App. 157, runaway horse case; Gallagher v. Illuminating Co., 72 Mo.App. 576, falling lamp case; Sackewitz v. Biscuit Co., 78 Mo.App. 144, falling drum; Shuler v. Railroad, 87 Mo.App. 618, employee injured in train collision; Tateman v. Railroad, 96 Mo.App. 448, licensee injured by falling door; Johnson v. Railroad, 104 Mo.App. 592, falling crowbar; Cleary v. Transit Co., 108 Mo.App. 433, loose trolley wire; Scharffey Const. Co., 115 Mo.App. 157, falling wall of uncompleted building case; Freeman v. Freeman, 141 Mo.App. 359, bailment; McFadden v. Lott, 161 Mo.App. 652, sightseeing automobile; Gannon v. Gas Co., 145 Mo. 502, death from fallen wire. (2) The petition pleads general negligence and the doctrine of res ipsa loquitur applies. Stauffer v. Railroad, 243 Mo. 325; Briscoe v. Railroad, 222 Mo. 104; Price v. Railroad, 220 Mo. 454; MacDonald v. Railroad, 219 Mo. 487; Chlanda v. Transit Co., 213 Mo. 244; Malloy v. Railroad, 173 Mo. 75; Patterson v. Traction Co., 178 Mo.App. 250; Nagel v. Railroad, 169 Mo.App. 292; More v. Railroad, 164 Mo.App. 34; Estes v. Railroad, 110 Mo.App. 725. Furthermore, a plaintiff who proves the happening of an accident and is otherwise entitled to presumptions arising therefrom, does not lose the benefit of such presumptions because he has alleged what he conceives to be the specific cause of the accident. Gallagher v. Illuminating Co., 72 Mo.App. 576; Walters v. Railroad, 48 Wash. 233; Traction Co. v. Worrell, 86 N.E. 78; Lobb v. Railroad, 48 Wash. 238; Kluska v. Yeomans, 103 P. 819; McNeil v. Railroad, 130 N.C. 253; Dearden v. Railroad, 33 Utah 143; Railroad v. Cotton, 140 Ill. 486; Railroad v. Carroll, 206 Ill. 318; Sullivan v. Rowe, 194 Mass. 500; Pierce v. Railroad, 22 Mont. 445; McNamara v. Railroad, 200 Mass. 491; Railroad v. Sheeks, 155 Ind. 74; Brick Co. v. Chevall, 119 Ga. 842. The caboose and palace car passengers stand upon a footing of exact equality before the national courts. Railroad v. Horst, 93 U.S. 291; Railroad v. Lock, 17 Wall. 357; Railroad v. Nichols, 85 F. 948; Sprague v. Southern Ry., 92 F. 62; Traumbull v. Erickson, 97 F. 894; Railroad v. Crumpler, 122 F. 427.

Charles E. Morrow and Schnurmacher & Rassieur for respondent.

The defendant, operating an amusement device, is not a common carrier -- but whether the defendant is or is not so regarded can make no difference in this case. The rule of res ipsa loquitur applies only where there is something which, unexplained, tends to show that some act of negligence on the part of the carrier was the proximate cause of the injury. A person taking a ride on such a device, like a passenger on a freight train, submits himself to the inconvenience and dangers necessarily attending their operation. It is a matter of common knowledge that jolting and jarring are incident to the operation of cars around curves or down hills, and negligence cannot be inferred from the mere fact that injury resulted from the jarring, unless such jarring was unusual or extraordinary. Hedrick v. Railroad, 195 Mo. 104; Bartley v. Railroad, 148 Mo. 124; Wait v. Railroad, 165 Mo. 612; Erwin v. Railroad, 94 Mo.App. 289; Tickell v. Railroad, 149 Mo.App. 648; Ray v. Railroad, 147 Mo.App. 332; Woas v. Transit Co., 198 Mo. 674. This doctrine was applied in the following cases, where injuries were sustained by patrons of amusement devices: Benedick v. Potts, 88 Md. 52, 41 L. R. A. 478, where the injury was sustained on a "miniature railroad." Fenner v. Amusement Co., 87 A. (N. J. L.) 344, where the injury was sustained on a device called the "Human Niagara Falls." Lumsden v. Thompson S. R. Co., 114 N.Y.S. 421, where the injury was sustained on a "scenic railway."

GRAVES, C. J. Woodson, C. J., and Revelle, J., concur; Faris, J., concurs in result and all of opinion except paragraph five; Bond, Walker, and Blair, JJ., dissent in opinion by Bond, J.

OPINION

In Banc.

GRAVES C. J.

Action for personal injuries. The sum first claimed was $ 50,000, but about the conclusion of the trial nisi, a gracious amendment of the petition reduced the sum to $ 25,000. Plaintiff was a metal polisher in the city of St. Louis, earning, when at work, four dollars per day, the amount to which the union of which he was a member limited the earnings of their members. Country-bred, he had not at the date of the accident been fully initiated in all the amusements of a great city although he had lived there for a considerable time. His chum, Arthur Boardman, was of city origin, but not fully acquainted with some of the devices for entertaining a metropolitan public. At least they both disclaimed knowledge of the operation of a certain scenic railway called "The Racer Dip," and in the petition alleged to have been operated at Forest Park Highlands by the Park Circuit & Realty Company and the Mountain Railway Construction Company. So close was the relationship of the two that we find the following from Boardman in the course of his testimony:

"Q. What interest have you in this case that you continually, when I ask you one question, put in something at the tail end that nobody asks you for? A. Well, this is a friend of mine, and we had it made up to stick together, and I am going to stick to the finish."

On a Sunday evening early in May, 1910, these two friends, after partaking of a couple of bottles of beer each (according to Boardman), which beer was obtained from a negro bootlegger in the vicinity of plaintiff's home, repaired to plaintiff's home, where they had supper. After supper they visited Delmar Garden for a short time and then wended their way to Forest Park Highlands, and whilst there were attracted to the scenic railway or "Racer Dips." The cars and tracks of this miniature railway were in plain view and could have been seen had they looked. The evidence shows, though not from these two parties, that the cars and most of the tracks were in open view for a person standing at the platform from which the trains started. The evidence shows that "The Racer Dips" was a device for public entertainment, consisting of two miniature railway tracks upon which separate trains of small cars were run and so arranged that there was the appearance of racing between the two trains. The tracks had a common starting point and a common ending point. By mechanical force the trains of cars were pulled up grade to a considerable height and then turned loose to make the trip by gravity. This was accomplished by steep declines and elevations in the tracks so that the momentum gathered by going down a decline would carry the trains up the next elevation. Of necessity these declines and elevations were marked and sharp and had to follow each other in rapid succession. Variety was added to the trip by acute and sharp curves in the tracks as well as by a tunnel constructed thereover. Gravity being the sole power operating the train, the speed down the incline would be great and this speed would slacken gradually until the succeeding elevation was passed and the next decline reached. When the car turned the next decline it of necessity picked up speed rapidly.

The evidence discloses that these trains were made up of three cars having three seats each, and which seats would accommodate two pleasure seekers. In other words, eighteen persons constituted a train-load. While plaintiff was not always clear in his testimony, yet, taken as a whole, the evidence shows that plaintiff and his friend took passage on this pleasure device in the middle seat of the middle car of one of these trains. It is made quite clear that they were not in the front seat of the car. When the train was nearing the end of the journey plaintiff's foot got out of the car and struck an object to the side of the car, and a severe fracture of the right leg resulted, together with some other injuries.

It appeared from the evidence that the Park Circuit & Railway Company was the holding company for the defendant Mountain Railway Construction Company, and was not, itself, engaged in the actual operation of the pleasure device known as the "Racer Dips." But, whilst it held and owned the stock of the operating company, it was not, in fact, operating the device. Upon this showing plaintiff voluntarily dismissed as to such corporation.

The plaintiff's case largely turns upon the testimony of himself and his friend, although he introduced some other evidence which will be noted in the course of the opinion.

Going to the pleadings, it will be seen that the negligence of the defendant is thus stated in the petition:

"That said racer dip, the cars and tracks thereon were so faulty and so defectively constructed and defendants so negligently and carelessly maintained and operated the same that by reason thereof the car in which plaintiff was a passenger as aforesaid vibrated and shook so that the plaintiff was thrown with much force against the back of the conveyance or car in which he had passage, and plaintiff's right foot and leg were suddenly and...

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