Ray v. Chicago, Burlington & Quincy Railway Company
| Decision Date | 08 March 1910 |
| Parties | NEWTON L. RAY, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Lewis Circuit Court.--Hon. Chas. D. Stewart, Judge.
REVERSED.
Judgment reversed.
E. L Marchand, R. W. Ray and Trimble & Trimble for appellant.
(1) The burden of proving the negligence charged in this case, rests on respondent. Bartley v. Railroad, 124 Mo. 140; Hite v. Railroad, 130 Mo. 136; Guffey v Railroad, 55 Mo.App. 466; Hedrick v. Railroad, 195 Mo. 104; Garvin v. St. Louis, 151 Mo. 334; Saxton v. Railroad, 98 Mo.App. 503; Schaffer v Railroad, 128 Mo. 64; Yarnell v. Railroad, 113 Mo. 570; Railroad v. MacKinney, 135 Pa. 402, 37 Am. and Eng. 158; Curtis v. Railroad, 18 N.Y. 534; Railroad v. Kuhn, 6 S.W. (Ky.) 441; Elliott on Railroads (2 Ed.), S. 1644, notes 228, 229, 230 and 231; Woas v. Railroad, 198 Mo. 664. (2) It is a matter of common knowledge that jerks and jolts are incident to freight trains. Courts take judicial notice of these incidents. Young v. Railroad, 113 Mo.App. 636, 84 S.W. 176; Erwin v. Railroad, 94 Mo.App. 289; Prior v. Railroad, 85 Mo.App. 367; Wart v. Railroad, 165 Mo. 612; Hedrick v. Railroad, 195 Mo. 104; Portuchek v. Railroad, 101 Mo.App. 54; Olds v. Railroad, 172 Mass. 73; Railroad v. Priol, 144 Ill. 261; Guffey v. Railroad, 53 Mo.App. 462. (3) Evidence in the nature of the conclusion of a witness that the jerk was extraordinary is of no value. Hedrick v. Railroad, 195 Mo. 104; Portuchek v. Railroad, 101 Mo. 54; Wart v. Railroad, 165 Mo. 612; Erwin v. Railroad, 94 Mo.App. 289; Bartley v. Railroad, 148 Mo. 124; Guffey v. Railroad, 53 Mo.App. 465; Hite v. Railroad, 130 Mo. 136; Saxon v. Railroad, 98 Mo.App. 501; Henry v. Railroad, 76 Mo. 293. (4) Evidence that there was a hard jerk is not sufficient to raise a presumption of negligence. The evidence must go further and show that the jerk resulted from a defect in track or machinery or misconduct of trainmen. Bartley v. Railroad, 148 Mo.App. 124; Hite v. Railroad, 130 Mo. 136; Guffey v. Railroad, 53 Mo.App. 462; Hedrick v. Railroad, 195 Mo.App. 104; Wait v. Railroad, 165 Mo. 612; Railroad v. Arnold, 144 Ill. 261; Erwin v. Railroad, 94 Mo.App. 289; Saxon v. Railroad, 98 Mo.App. 501; Holt v. Railroad, 84 Mo.App. 443; Prior v. Railroad, 85 Mo.App. 378. (5) Starting the train without warning respondent that the caboose would not stop at the platform, was not the proximate cause of the injury. Saxon v. Railroad, 98 Mo.App. 501; Blue v. Railroad, 98 Mich. 225; Ins. Co. v. Boon, 95 U.S. 117. (6) The statement of the brakeman was not an order. It was a mere statement that the train would not stop. Heaton v. Railroad, 65 Mo.App. 479; Hunter v. Railroad, 126 N.Y. 18; Murphy v. Railroad, 43 Mo.App. 343; Vincent v. Railroad, 71 Iowa 58, 32 N.W. 100; Lindsey v. Railroad, 47 Iowa 407, 20 N.W. 737; Dietrick v. Railroad, 58 Md. 347, 11 Am. and Eng. R. R. Cas. 115. There is no presumption that the brakeman had authority to order or direct Ray to board the caboose. Farber v. Railroad, 116 Mo. 81. (7) The attempt to board a train in motion is presumptive negligence. 1 Fetter on Carriers, p. 378, sec. 149. (8) Plaintiff cannot justify his act in attempting to board the train while in motion except by showing that he acted under coercion of circumstances. This he wholly fails to do. Heaton v. Railroad, 65 Mo.App. 479; Solomon v. Railroad, 103 N.Y. 437; Hinton v. Railroad, 126 N.Y. 18; Victor v. Railroad, 30 A. 38. (9) Technical phrases in instructions constitute error. Mulderig v. Railroad, 94 S.W. 801.
O. C. Clay and A. F. Haney for respondent.
(1) Railroad companies are held to the highest care and skill in preventing injuries to their passengers "which prudent men would use and exercise in a like business and under like circumstances." Redmon v. Railroad, 185 Mo. 1; Jackson v. Railroad, 118 Mo. 199; Higgins v. Railroad, 36 Mo. 418; Sullivan v. Railroad, 133 Mo. 1; Tillman v. Transit Co., 102 Mo.App. 553; Huelsenkamp v. Railroad, 37 Mo. 537. But, on the other hand, the law requires of the passenger no more than the exercise of ordinary care for his safety. Mitchell v. Railroad, 112 S.W. 291; Huelsenkamp v. Railroad, 37 Mo. 537; Hensler v. Stix, 113 Mo.App. 162. (2) Where a railroad company carries passengers for hire on its freight trains, it must exercise the same degree of care as is required in the operation of its regular passenger trains, the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance. Wait v. Railroad, 165 Mo. 612; Irwin v. Railroad, 94 Mo.App. 289; Guffey v. Railroad, 53 Mo.App. 462; McGee v. Railroad, 92 Mo. 208; Wagner v. Railroad, 97 Mo. 512; Whitehead v. Railroad, 99 Mo. 263; Mitchell v. Railroad, 112 S.W. 291. (3) The fact that the jerk in evidence was of sufficient violence to break plaintiff's hands loose from the handholds, and throw him from the car steps over the railing back of the car steps onto the railroad track, is sufficient evidence of the unusual and extraordinary character of the jerk, and prima-facie proof of the negligence of defendant's servants in the management of the train, and cast upon the defendant the burden of showing the jerk was produced by causes consistent with the careful management of the train. Plaintiff's direct evidence as to the unusual violence of the jerk is also proof of defendant's negligence. Dougherty v. Railroad, 81 Mo. 325; Murphy v. Railroad, 43 Mo.App. 342; Dorsey v. Railroad, 83 Mo.App. 528; Mitchell v. Railroad, 112 S.W. 291; Hite v. Railroad, 130 Mo. 132; Condy v. Railroad, 13 Mo.App. 587; Busell v. Railroad, 125 Mo.App. 441; Fullerton v. Railroad, 84 Mo.App. 498. (4) Where the facts are before the jury, the presumptions or inferences they warrant are for the jury. Cambron v. Railroad, 165 Mo. 543; Dorsey v. Railroad, 83 Mo.App. 528; Butts v. Bank, 99 Mo.App. 168. (5) The courts will not, as a matter of law, declare a person guilty of contributory negligence who attempts to get on a train while it is moving slowly, especially at a platform. The question of contributory negligence in such cases should be determined by the jury, under the guide of proper instructions, in the light of all the attending circumstances. Fulks v. Railroad, 111 Mo. 335; Schaefer v. Railroad, 128 Mo. 64; Hansberger v. Railroad, 82 Mo.App. 566; Peck v. Transit Co., 178 Mo. 617; Swigert v. Railroad, 75 Mo. 475; Eikenberry v. Transit Co., 103 Mo.App. 442; Spencer v. Transit Co., 111 Mo.App. 653. (6) Knowledge or notice may be proved either by direct evidence or inferred from other facts and circumstances. Rine v. Railroad, 100 Mo. 228. (7) Even if appellant's charge were true that respondent's instructions numbers 12 and 13 improperly included acts of negligence on the part of defendant's servants, in addition to that consisting in the negligent jerking of the train, yet that could be no ground for reversal. Gibler v. Railroad, 129 Mo.App. 93. (8) Under circumstances where it would not be negligence as a matter of law for plaintiff to get on or off a moving train, the statement of the brakeman to plaintiff to get on is to be regarded as a direction or invitation. Fillingham v. Transit Co., 102 Mo.App. 573; Seymour v. Railroad, 114 Mo. 266; Waller v. Railroad, 83 Mo. 608. (9) The use of the term "proximate cause" in instructions on negligence is sanctioned. Deschner v. Railroad, 200 Mo. 310; Harrison v. El. Light Co., 195 Mo. 606. (10) Where the instructions asked by defendant are too voluminous the trial court would be upheld in refusing even all of them. Dakin v. Mercantile Co., 197 Mo. 238; Heman v. Hartmen, 189 Mo. 20. (11) (a) Plaintiff assumed only the risk of injury resulting from the usual or ordinary jerks and jars incident to the operation of the freight train. (b) Plaintiff did not assume the danger arising from the negligence or want of proper care of those in charge of the train. Mitchell v. Railroad, 112 S.W. 291.
Appeal from a judgment for damages given to compensate plaintiff for a personal injury found to have been caused by the negligence of defendant's servants. Plaintiff had shipped a carload of cattle in a freight train from Canton, Missouri, over defendant's railroad destined ultimately to Chicago Illinois, over a route which extended through West Quincy, Missouri. The train passed southward to LaGrange, between Canton and West Quincy, where about noon it took a sidetrack to let a passenger train pass. Plaintiff had accompanied the shipment, and while the freight train was on the sidetrack at LaGrange, he asked the rear brakeman (Gilfillan) if he (plaintiff) would have time to attend to his cattle. The brakeman replied there would be plenty of time; whereupon plaintiff left the caboose and paid some attention to his stock while the train was on the switch, walked from there to the depot, and again noticed the cattle after the train had moved to the depot on the departure of the passenger train. The freight train consisted of twenty-one cars, and as it stood at the depot on the main track, the engine and six or seven cars were south of the depot door and the remainder of the cars, with the caboose at the rear, were north of the door, the course of the train being southward. When plaintiff went to the depot after first attending to his stock, he saw there the same brakeman who had told him he would have time to look after his cattle, and inquired of said brakeman when the train would start; but received an unresponsive answer. This occurred about five minutes before the train started to leave the station, where it remained a half-hour or more. The conductor was at the depot, saw plaintiff waiting there, knew he was a passenger on the...
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