Rawlings v. Wabash Railroad Co.

• Decision Date: 05 January 1903
• Citation: 71 S.W. 535,97 Mo.App. 511
• Parties: BESSIE RAWLINGS, by Next Friend, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

71 S.W. 535

97 Mo.App. 511

BESSIE RAWLINGS, by Next Friend, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 5, 1903

Appeal from Boone Circuit Court.--Hon. John A. Hockaday, Judge.

AFFIRMED.

Judgment affirmed.

Geo. S Grover for appellant.

(1) Neither the effect upon the plaintiff's health, nor her mental anxiety, if any, are proper elements of damage under the pleadings and the evidence in this case, or in actions of this character. (a) Because they are too remote. Trigg v Railroad, 74 Mo. 147; Marshall v. Railroad, 78 Mo. 610; Connell v. Telegraph Co., 116 Mo. 34; Francis v. Transfer Co., 5 Mo.App. 7; Strange v Railway, 61 Mo.App. 586; Deming v. Railway, 80 Mo.App. 152; Snyder v Railway, 85 Mo.App. 495. (b) Because there is no causal connection between the act complained of and such effect. Henry v. Railroad, 76 Mo. 288; Sira v. Railroad, 115 Mo. 127. (2) For a mere technical breach of the contract of carriage, such as were here shown, the recovery should have been limited to nominal damages. Brown v. Emerson, 18 Mo. 103; Owen v. O'Reilly, 20 Mo. 603; Rogan v. Railway, 51 Mo.App. 665.

C. B. Sebastian for respondent.

(1) The question whether there was a personal injury or not, and whether or not said injury was a proximate consequence of the wrong committed by defendant, were questions of fact and the finding of the trial court is fully sustained by the evidence. (2) Even if there was a conflict, the trial judge saw the witnesses and heard the evidence, and could better weigh it. His finding is fully warranted and is in harmony with the finding in the cases of Evans v. Railway, 11 Mo.App. 463; Winkler v. Railway, 21 Mo.App. 99; Atkinson v. Railway, 90 Mo.App. 497.

OPINION

SMITH, P. J.

The plaintiff in this case is the twelve-year-old sister referred to in the opinion in that of Noble Rawlings by Next Friend, etc. v. Wabash Railroad Company, decided at the present term. The statement of facts in that case will to a certain extent answer in this.

The plaintiff in this case, it appears, after leaving defendant's train and in her efforts to reach the station which it had carried her by, fell between the triangular bars or slats of the cattle guard which she was compelled to cross and in consequence thereof received several abrasions of the skin on her legs and a bruise on her thigh; and besides this, she fell down once or twice at other places and by the time she reached the station she was wet from head to feet and in a sorry plight generally. By that time it was getting so dark that her mother, who was looking for her and her little brother who was accompanying her, could not discern their moving forms but a short distance in the gloom and darkness. The plaintiff was made sore and sick, and was somewhat disabled to attend school for some time thereafter, as she had previously done.

She had been furnished by her father with a ticket over defendant's railway to More's station, and consequently the question whether or not she was a passenger does not arise in the case.

The defendant having sold the plaintiff a ticket to carry her to More's station, it can not excuse itself from a non-compliance with its undertaking by showing its train conductor was not aware of her presence on the train. Defendant knew, or ought to have known, when plaintiff entered a car of its train that she had a ticket which required it to stop its train at More's station so as to afford her an opportunity to leave it--the train--there. It was a clear breach of duty on defendant's part when it neglected to stop at the station of plaintiff's destination, and if injury resulted to plaintiff from such negligence there was liability to her therefor.

The defendant argues that the...