Provance v. Missouri Southern R. Co.

• Citation: 186 S.W. 955
• Decision Date: 25 May 1916
• Docket Number: No. 1633.,1633.
• Parties: PROVANCE v. MISSOURI SOUTHERN R. CO.
• Court: Court of Appeal of Missouri (US)

186 S.W. 955

PROVANCE v. MISSOURI SOUTHERN R. CO.

No. 1633.

Springfield Court of Appeals. Missouri.

May 25, 1916.

Rehearing Denied June 24, 1916.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action by W. A. Provance against the Missouri Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. B. Daniel, of Piedmont, and Arthur T. Brewster, of Poplar Bluff, for appellant. Stuart L. Clark, of Poplar Bluff, and Orrin L. Munger, of Piedmont, for respondent.

STURGIS, J.

In this case plaintiff recovered judgment for $1,000 in damages for personal injuries sustained by him by reason of being violently thrown to the floor of the car in which he was traveling as a passenger on defendant's railroad. The train in question was a mixed one consisting of 21 freight cars, a baggage car, and a passenger coach, drawn by two locomotive engines. The plaintiff boarded the train at Leeper, Mo., his destination being Raymond, Mo. As the train was approaching the station at Raymond, the plaintiff rose from his seat, intending to go to the door to get off, but while doing so the train came to such a sudden and violent stop that he was thrown to the floor and against a seat. The allegations of negligence are that the agents and servants of the defendant in charge of the operation and management of said train so carelessly and negligently operated and managed the same in approaching the station of Raymond, where plaintiff was to alight from said train, that said train was caused to check its speed very suddenly, and to jolt and pitch the coach in which he was riding so suddenly, violently, and forcibly and without warning that plaintiff was thrown down and against the floor, seats, and other parts of said coach in which he was riding as a passenger, striking his head and body against the seats and floor of said coach so forcibly and violently as to bruise and injure him about the head and body. This is followed by specifications as to the nature and extent of plaintiff's injuries and a prayer for judgment.

It will be noted that there is no allegation in the petition that the stopping of the train was unusual or extraordinary, further than to say that it was so sudden, violent, and forcible that it caused plaintiff to be thrown to the floor and against the seat with sufficient force to cause his injuries. The sufficiency of the petition, had it disclosed that this was a freight train, would be doubtful. Saxton v. Railway, 98 Mo. App. 494, 503, 72 S. W. 717. The petition was not attacked in any way till after judgment, and we may fairly say that this defect, and such we think it is, was not pointed out till the case reached this court.

The same question, however, is presented by the instructions. The plaintiff proceeded to try his case on the theory that it was sufficient for him, in order to make his case, to show that, while he was going forward in the coach and the train was yet in motion, there was such a sudden and violent stop that he was thrown down and injured. His evidence tended to prove this, and perhaps more, as we shall presently note; and at the close of the evidence the court gave, at plaintiff's request, an instruction covering the whole case and authorizing a verdict. This instruction, after requiring a finding that plaintiff was a passenger on defendant's train, and that as such train approached Raymond and the station was announced, the plaintiff proceeded to alight therefrom, and in so doing exercised ordinary care, then proceeds:

"And if you shall also believe and find from the evidence that said train was caused to suddenly check its speed and to jolt and pitch the coach in which plaintiff was riding as a passenger so suddenly, violently, and forcibly as to throw plaintiff down upon and against the floor, seats, and other parts of said coach, thereby injuring him, your verdict should be for the plaintiff, unless defendant has shown to your satisfaction by the preponderance or greater weight of the evidence that such sudden stopping of said train, and the jolting and pitching of said coach, was caused by an inevitable accident which could not be avoided, or from some cause which human precaution and foresight could not have averted."

This instruction, we find under the authorities, is erroneous in that it ignores the fact, as does the petition, that this train was a freight or mixed train, and that in traveling on such trains passengers assume the risk of injury incident to the sudden and more or less violent stops, jolts, and jars usual in the operation of such trains. The above instruction makes no distinction whatever between this freight train and a regular passenger train, but imposes the same presumption of negligence from the mere fact of injury from sudden stops and jolts as applicable to passenger trains. In the case of a freight or mixed train, where the passenger coach serves the same purpose as a caboose, it is not the law that a sudden stop or violent jolt in stopping a long freight train, without more, raises a presumption of negligence. It was therefore error to instruct the jury that a finding, without more, that the train in question was so suddenly checked in speed, and the coach caused to jolt and pitch, so as to throw plaintiff to the floor to his injury would warrant a verdict for him. Hawk v. Railroad, 130 Mo. App. 658, 663, 108 S. W. 1119; Wait v. Railroad, 165 Mo. 612, 621, 65 S. W. 1028; Hedrick v. Railway, 195 Mo. 104, 117, 93 S. W. 268, 6 Ann. Cas. 793; Saxton v. Railway, 98 Mo. App. 494, 503, 72 S. W. 717; Guffey v. Railroad, 53 Mo. App. 462; Tickell v. Railroad, 149 Mo. App. 648, 651, 129 S. W. 727. In the Hawk Case, supra, in considering an accident much like this, and on a similar train, the court said:

"Therefore, we shall assume that plaintiff remained in his seat until the shock occurred, and was suddenly and violently thrown to the floor thereby. And, further, that the stop was accompanied by a jolt of some severity, but, with these facts conceded, plaintiff still has fallen short of making out a case to go to the jury. * * * The fact that a sudden and violent jolt or jar accompanies the stopping of a freight train ipso facto will not raise a presumption of negligence. A passenger injured thereby, to be entitled to recover from the carrier, must go further: He must adduce facts from which an inference of negligence fairly arises."

In the Hedrick Case, supra, the court said:

"When it is considered that it is a matter of common knowledge that in the movement of trains there is more or less jolting and jerking incident to the starting and the stopping of the train, and that, so far, human skill and ingenuity has not been able to prevent this entirely, it cannot be said as a matter of law that negligence can be predicated upon the mere fact that the jolt or...