Portuchek v. Wabash R. Co.

• Citation: 74 S.W. 368,101 Mo. App. 52
• Parties: PORTUCHEK v. WABASH R. CO.
• Decision Date: 14 April 1903
• Court: Court of Appeal of Missouri (US)

74 S.W. 368

101 Mo. App. 52

PORTUCHEK v. WABASH R. CO.

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

CARRIERS—PASSENGERS ON FREIGHT TRAINS —ASSUMPTION OF RISK.

1. Although the responsibility of a railroad for the safe transportation of passengers on a freight train is not restricted or lessened, and the same degree of care is required in the management of such a train when carrying passengers as in the operation of a train exclusively for passenger service, yet a passenger on a freight train is charged with knowledge of and assumes the hazards inherent in that mode of travel.

2. Where a passenger on a freight train was injured by a fall caused by a sudden jolt in the stopping of the train, but there was no evidence of any defect in the railroad's tracks, train, or appliances, nor tending to show any want of skill or care on the part of its employés in the management of its train, or that it was stopped in a negligent manner, there was no liability on the part of the railroad for such injuries.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Frances Portuchek against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Geo. S. Grover and Geo. Robertson, for appellant. P. H. Cullen, for respondent.

REYBURN, J.

On March 27, 1902, plaintiff, the wife of a farmer residing near Wellsville, Montgomery county, boarded a car at Martinsburg, in Audrain county, with two companions, to be transported to Wellsville. The car in which they traveled was a caboose attached to a freight train containing 17 cars, 14 of which were equipped with air brakes, and 3 with hand brakes. The train regularly carried passengers, and plaintiff and her associates paid the usual and customary fare. Before reaching the depot at Wellsville, the train pulled into a side or passing track to permit a passenger train to pass. The switch at the junction of the main and side tracks is west of the Wellsville depot, and the train slackened its speed to enable its brakeman to throw the switch, pulled in on the side track, and again reduced its speed to allow the brakeman to return to the train. At this junction Miss Motts, one of the plaintiff's companions, had gone to the rear end of the caboose, and was standing with her hand on the door knob. Miss Steinmetz, plaintiff's other companion, was sitting with plaintiff, who had her left hand on the hinged table fastened to the wall, which let down and extended across in front of the seat on which these two ladies were seated. As Miss Motts went to the rear door, the conductor warned her to hold on, as the car would give a jerk; and this warning was heard and recalled by Miss Motts and Miss Steinmetz, but not by the plaintiff, seated by her side. The train had not stopped, but was moving slowly about two blocks from the depot as plaintiff started to rise, and the jolt came, and she fell over the table, striking her left side against it, and resumed her seat. Miss Motts, who had...