Pointer v. Mountain Ry. Const. Co.

Decision Date11 November 1916
Docket NumberNo. 17851.,17851.
Citation269 Mo. 104,189 S.W. 805
PartiesPOINTER v. MOUNTAIN RY. CONST. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Lorenzo B. Pointer against the Mountain Railway Construction Company. Verdict and judgment for defendant, and plaintiff appeals. Affirmed.

James J. O'Donohoe, of St. Louis, for appellant. Charles E. Morrow and Schnurmacher & Rassieur, all of St. Louis, for respondent.

GRAVES, 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, $4 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 Dips" 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 a 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 train 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 trainload. 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 track thereon were so faulty and so defectively constructed and defendant 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 violently thrown upwards and out of said conveyance or car, thereby causing his said right foot and leg to be caught in and thrown upon and against railings, posts, and uprights along and outside of said conveyance or car, through which plaintiff was greatly and permanently injured, as follows."

The answer filed by defendant thus reads:

"Comes now the defendant in the above-entitled cause, and for answer to the plaintiff's amended petition denies each and every allegation in said amended petition contained and set forth.

"Further answering, defendant says that what, if any, injuries were received by the plaintiff on the occasion in question and by and on account of the things mentioned in his amended petition were caused by the ordinary and usual movements of the racer dip mentioned in the plaintiff's petition, which was an amusement device, the real attractiveness of which depended solely upon the sensations that rapid changes of speed give the person using it, and that the plaintiff assumed all such dangers and risks and on account thereof cannot recover.

"Further answering, defendant says that what, if any, injuries plaintiff received on the occasion in question and by and on account of the things mentioned in his amended petition were caused by his own negligence in this: That the plaintiff negligently and carelessly failed to remain in his seat in the car, and negligently and carelessly threw his feet up and outside of the car, and negligently and carelessly failed to hold to the car in which he was riding and negligently and carelessly failed to keep a lookout for his own safety, and that by reason thereof threw his right leg up, above and outside of the car in which he was riding, whereby he received what, if any, injuries complained of in his amended petition, and that the same were caused by his own negligence contributing thereto.

"Wherefore, having fully answered, defendant prays to go hence and recover of plaintiff its costs herein."

The reply was a general denial.

Upon a trial the court gave to the jury a peremptory instruction to find for the defendant, and plaintiff chose to submit his case to the jury rather than take an involuntary nonsuit. Verdict and judgment were for defendant, and plaintiff has appealed. The evidence in greater detail will be considered in the course of the opinion in connection with the points made therein.

I. In his petition plaintiff avers that he was a passenger for hire, and to break the force of the want of proof invokes the doctrine of res ipsa loquitur. There is absolutely no proof in the record that the train of cars upon which plaintiff was injured was run otherwise than in the usual and ordinary manner for the operation of trains upon this pleasure device or other similar pleasure devices. Both plaintiff and his chum disclaim any knowledge of how such trains should be, or were in fact, run. Plaintiff tried to make no proof that the train at the time of the accident was run otherwise than in the customary and usual manner. He put on as a witness a man connected with the defendant company, and this man testified that he examined both the cars and the track immediately after the accident, and they were in good and proper condition. There is no showing that the cars and tracks were not constructed just as cars and tracks are usually constructed for such purposes. Both plaintiff and his friend testify that the train was pulled to a given height and then loosed for gravity action thereafter. The manner of the accident had best be given in their own language. Plaintiff says:

"Q. Now, will you tell the jury if you had any accident there and how it happened? A. I was sitting in one of these cars, and sitting on the right side, and it started out on the run and got very near all the way around, and the car slackened speed and threw me forward, and started up all of a sudden and threw me backward, and shot up that way (indicating) and threw me to one side, and threw my right foot out and caught my leg. Q. When your foot was thrown out, what happened to it? A. It was caught against posts or uprights or rails and alongside the track where the car was."

Arthur Boardman, his friend, says:

"Q. Was Pointer injured on that occasion? A. Yes, sir. Q. Will you state just how he was injured? A. Yes, sir. We was on the last curve coming in, and the car was running at a...

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