Redmon v. Metropolitan St. Ry. Co.

• Decision Date: 13 December 1904
• Citation: 185 Mo. 1,84 S.W. 26
• Parties: REDMON v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

84 S.W. 26

185 Mo. 1

REDMON v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

December 13, 1904.

CARRIERS — STREET RAILROADS — LIABILITY AS CARRIERS — INJURY TO PASSENGER — PRIMA FACIE CASE — BURDEN OF PROOF — DECLARATIONS OF CONDUCTOR — ADMISSIBILITY.

1. Where, in an action for injuries to a passenger, it appeared that three ribs were dislocated from their attachment to the bones of the back and knocked forward about an inch, that his heart and spine were affected, and that his bowels would not act without medicine, a verdict for $3,000 was not excessive.

2. Street car companies are carriers of passengers, and held to the highest care and skill, in preventing injuries to passengers, which prudent men would exercise under like circumstances.

3. In an action by a passenger on a street car for injuries, a showing that the car came to a sudden stop, whereby he was thrown from his seat, made out a prima facie case in his favor.

4. Where a street car came to a sudden stop, and a passenger was thrown from his seat and injured, and when he regained consciousness, while the conductor was removing him from the car, he inquired of the conductor the cause of the trouble, the statement of the conductor as to what had caused it was not admissible as res gestæ in an action for the injuries.

5. The statement was not admissible as the declaration of an agent binding on his principal.

6. The erroneous admission of the statement of the conductor that a coupling pin had fallen into the slot rail was prejudicial to defendant.

7. Where the sudden stopping of a street car caused a passenger to be thrown from his seat and injured, and, in an action by him for the injury, the cause of the same was alleged to be the violent stopping of the car, and there was evidence that a bolt or piece of iron of some kind was taken out of the slot rail after the accident by defendant's servants and taken away by them, the character of such piece of iron being within the knowledge of defendant, the burden was on defendant to show how the obstruction, whatever it was, got into the rail.

8. Where, in an action for injuries to a passenger on a street car, the cause of the injury was alleged to be the sudden, violent stopping of the car, and there was some evidence that after the accident a bolt or piece of iron of some kind was taken from the slot rail, it was proper not to restrict the jury to finding negligence as to the presence of a bolt or piece of iron in the rail.

9. In an action for injuries it is proper to permit an expert medical witness to give his opinion on a hypothetical question that a certain injury was the cause of a disease or condition found in the injured person.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by J. G. V. Redmon against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Jno. H. Lucas, for appellant. Neal & Eppstein, for respondent.

GANTT, P. J.

This is an action for damages alleged to have been caused to the plaintiff by the negligence of the defendant. On the afternoon of October 8, 1900, the plaintiff, while a passenger on a cable car of defendant, was injured by the sudden and violent stoppage of the car near the intersection of Ninth street by Walnut street.

The petition alleges the incorporation of the defendant, and its ownership of a street railway over and along Ninth street; that as such street railway company it was a common carrier of passengers for hire, charged with all the duties and liabilities of such common carrier; that at all the times complained of, and prior thereto, the cars and trains of defendant were propelled and operated by means of an endless or continuous cable or wire rope, which was caused to move by machinery driven by steam power, and which cable was grasped by a device attached to its cars called a "grip," which caused the cars to move with said cable or wire rope, which grip was operated by the servants or agents of defendant, who caused said grip to grasp and release said cable at the will of the operator; that defendant usually ran its cars in trains of two cars each, and the injury of which plaintiff complains was done while plaintiff was occupying the rear car of a train of two cars, as hereinbefore shown; that on October 8, 1900, he entered the rear car of said train of defendant at a point west of Walnut street, on Ninth street, for the purpose of going east to its termination; that plaintiff complied with all the requirements of defendant, and became a passenger on said car of defendant, and as such occupied a seat in said car; that while lawfully occupying said seat as such passenger as aforesaid, and entitled to all the rights, privileges, care, and protection which defendant owed to its passengers, and while plaintiff was in the exercise of due care, when said cars reached Walnut street, and while making a high rate of speed, the said cars, by reason of the carelessness and negligence of the defendant, its agents and servants, came to an instant, abrupt, unusual, and sudden stop, whereby plaintiff was thrown with great violence from his seat in said car against the stove, seats, sides, and floor of the said car, by which he received and sustained great bodily injuries, to wit, three of his ribs were broken, and he suffered internal injuries in his intestines and bodily organs, and his heart and liver were deranged and enfeebled, and his bowels partially paralyzed, and he was permanently injured, etc., for which he prayed damages in the sum of $30,000. The answer admitted the incorporation of defendant, and denied all other allegations in the petition, and also pleaded contributory negligence. The cause was tried, and a verdict of $3,000 rendered in favor of plaintiff, and judgment accordingly. After motions for a new trial and in arrest of judgment had been filed and overruled, the defendant appealed to this court.

The facts developed on the trial are substantially these: The plaintiff is about 40 years old. About 3 o'clock in the afternoon of the 8th of October, 1900, he took a seat in one of defendant's street cars on Ninth street, intending to go to his home in Independence, Mo. He got on the car at what is known locally as "the junction" of Ninth and Main streets. His car was going east. The next street east is Walnut street. As he was in the act of paying his fare, the train of two cars came to an abrupt and sudden stop. The plaintiff was shocked and rendered insensible at first, but recovered consciousness while the conductor and some one else were removing him from the car. The plaintiff inquired of the conductor the cause of the trouble, and was told that a coupling pin had fallen from the car into the slot rail. This evidence was objected to at the time, but admitted by the court.

Peter Martin, an employé of defendant at the time, and who had worked for the defendant 13 years, testified he was a flagman at the Walnut and Ninth street crossing, for defendant, on the day of the injury to plaintiff, and remembered the accident. He had been on duty at the crossing of Walnut street by the Ninth street cars of defendant up to 3 o'clock that day, when another flagman took his place. He was standing on the north side of Ninth street and on the west side of Walnut street, waiting for a car to go to Westport or to Fifteenth and Grand avenue. Had been there only a short time. The accident happened while he stood there. The Ninth street car came up the incline on Ninth, and came to a sudden stop when it hit Walnut street. The car stuck there for a few minutes. The wrecking wagon soon came. Ben Lee was the driver, and George Hall, the rope splicer of defendant, was there, and the other flagman. John Evans was there also in a few minutes. The car had not reached clear up on Walnut street when it stopped. The grip car stopped on the first track on Walnut street. The train was composed of a grip car and one coach. The train stopped with a jar or shock. When the wrecking wagon came, the car was shoved west and the wreck cleaned up, and the train started again. The wreck caused a delay of 5 minutes, or possibly 10 minutes. He saw one man helped out and taken to the sidewalk. He had his hand on his forehead. He saw something taken out of the slot rail; couldn't say whether it was a bolt or a pin. "I saw them taking it out of the slot rail, and the men took whatever it was away. I think it was one of the railroad men that took it, but don't know which one it was. All the cars of the Ninth street line have drawheads in each end. The coupling pins were bolts about six inches long and seven-eighths of an inch in diameter, which held the links which connected the cars." On cross-examination he stated that the cars on Ninth street passed this crossing sometimes every 2 minutes, and sometimes it was 15 minutes between cars. The cars had been running regularly on the day of the accident, and there was no stoppage until the car on which plaintiff was riding suddenly stopped. No other car so stopped that day to his knowledge. There was something in the slot rail to stop the car. It was taken out so quick he didn't know what it was. He didn't take it out himself, but to the best of his recollection one of defendant's men took it out, but he didn't know which one of them it was.

There was evidence that plaintiff's fourth, fifth, and sixth ribs on the right side...