Rhodes v. Missouri Pac. R. Co.

• Decision Date: 06 November 1923
• Docket Number: No. 18282.,18282.
• Citation: 213 Mo. App. 515,255 S.W. 1084
• Parties: RHODES v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

255 S.W. 1084

213 Mo. App. 515

RHODES v. MISSOURI PAC. R. CO.

No. 18282.

St. Louis Court of Appeals, Missouri.

November 6, 1923.

Rehearing Denied December 3, 1923.

Appeal from Court of Common Pleas, Cape Girardeau County; John A. Snider, Judge.

Action by Bell Rhodes against the Missouri Pacific Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Abington & Abington, of Poplar Bluff, for respondent.

NIPPER, C.

This is an action for damages for injuries alleged to have been sustained by plaintiff on March 20, 1921, immediately after she had become a passenger on one of defendant's passenger trains, at Platow Station, in Wayne county, Mo. She boarded the north-bound train at that point on her way to Des Arc, in Iron county, and just after boarding the train, and while on the way from the door of the coach to a seat, she claims to have been injured by the sudden and violent jerk of the train, which threw her with great force against the floor, breaking and injuring her clavicle or collar bone, and also bruising her arm and back. The petition alleges, as negligence of the defendant, that "when the agents, servants and employees of said defendant, in charge and control of said passenger train, disregarding their duty to this plaintiff as such passenger, so carelessly, unskillfully, and negligently managed and operated said train that, immediately after plaintiff had entered the door of the coach in the said train on which she was taking passage, and before plaintiff could become seated, and while walking in the aisle or passageway to a seat in said car of said train, the defendant's agents and servants in charge of said train negligently and carelessly caused said train to suddenly and violently jerk with unusual and unnecessary force, and by reason thereof plaintiff was suddenly and violently thrown down with great force against the floor and against the arm and back of a heat and other parts of the car in which she was a passenger, and thus and thereby and then and there and as a direct result of the negligence and carelessness of defendant, its agents, and servants, plaintiff was greatly and permanently injured," etc.

The answer was a general denial.

Plaintiff obtained judgment for $5,500, and defendant appeals.

Plaintiff, who was 62 years old at the time, had been to visit her sister in Reynolds county, and on her return home she was brought to this station by her nephew, Henry Howard. They made the trip in a hack or buggy, and reached Platow switch, a small flag station on defendant's line of railway, between 12 and 1 o'clock. The nephew, Howard, flagged the train, which stopped at the station, located at the foot of a grade extending north. When the train stopped, plaintiff boarded the same, followed by Howard, who was assisting her. About the time she entered the door of the train and started walking south to a seat in the chair car, the train gave a sudden lurch or jerk and threw her down in such manner as to cause her injuries. She testified that she had ridden on this railroad at intervals even since it had been built; that she was only a little child when it was finished. Over the objections of defendant's counsel, she was permitted to describe the incident in the following language:

"When I was getting near the seat the train gave an unusual jerk and threw me down. I could not stand there at all, and I could not catch to anything to stand up. I had my traveling bag in my right hand, and it jerked it out of my right hand, and I caught in such a way that my arm and shoulder went inside the arm of the seat. I fell to my knees; it just threw me to my knees, which struck on the floor. When I got up and sat down and happened to notice my hand bag, it was out like that from me (indicating), and I reached and pulled it back and set it up.

"The reason I did not make complaint of my injury at that time to the conductor or auditor when they took up my fare was that I did not realize that I was hurt. It seemed like I was numb until I did not realize. I thought it was a little fall, and I would get over it; I thought 1 would get over it. If there was any one on that train that I knew, I don't know it. Since that time have not learned of any one who was a passenger on that coach whom I knew. This accident happened on a Sunday."

On cross-examination, plaintiff stated that she had picked up her traveling bag at the front end of the coach as she entered. The train was going north, and she started south into the "ladies' coach," and had selected about the fourth seat from the end of the car in which she was injured, this being the first seat that was empty; that the train gave a sudden jerk and caused her to fall forward on the arm of the seat, jerking the traveling bag out of her right hand, and throwing her to her knees.

Henry Howard, plaintiff's nephew went behind her on the train, and, after stepping inside the door of the coach, he set plaintiff's grip down and told her good-by. The train started quickly. The brakeman, who was coming on the train behind him, turned to the north car. As witness started to step off the train, it jammed and gave a hard jerk. He caught against the south side of the car before he got off the step. He said it was about as hard a jerk as he ever had. It threw him north, and then jerked him south; that it would have jerked him down if he had not caught hold of the car. Witness testified that he had ridden on trains all his life; that he was 31 years old; that he had experienced the usual and, ordinary jerks upon trains. As soon as he straightened up, he jumped off the train. He did not know that plaintiff was injured until about two weeks later.

Plaintiff made no complaint of her injuries to the conductor or any one else on the train because she says she did not know she was hurt. She went on to her destination at Des Arc, and from there she walked to her home about three-fourths of a mile distant. About the 8th of April following, she called at the office of Dr. Farr at Des Arc for treatment. He testified that he found an oblique fracture of the right clavicle. He placed the bone in apposition, and bandaged her arm and shoulder. He found no other injury, nor looked for any. After that he saw her at her home, and made a partial examination of her on two different occasions. He testified that she had very little mobility of the right shoulder joint, and complained of pain. This last examination was made more than a year after he had treated plaintiff for the broken clavicle. After he treated her the first time she went to St. Louis and took a series of treatments at Barnes Hospital for five or six weeks. She testified that she was unable to sleep on her right side; that sometimes she could case herself a little by taking a small pillow and resting her arm and shoulder on that, and by use of a hot water bottle and hot cloths. Dr. Farr testified that the loss of the use of the right arm was permanent.

At the close of plaintiff's case, defendant asked for an instruction in the nature of a demurrer, which the court refused to give.

Dr. Rowe, witness for defendant, testified that he had examined plaintiff at the request of Judge Sheppard, defendant's counsel, and found her collar bone in good condition, with no evidence of any fracture of the clavicle; that he found a limited motion of the right arm, and evidence of pain, probably neuritis; that the chances were the condition would improve to some, extent, but there would be some permanent injury there; that he did not think the stiffness of the arm was caused by the fracture of the collar bone; that he found evidence of neuritis; and that such could be caused by an injury to the shoulder.

William True, who was conductor of, and in charge of, the train on which plaintiff claims to have been injured, testified that there was nothing wrong with the train, and that no complaint was made by any one on that trip about getting hurt.

T. Walker, the fireman, testified that there was nothing wrong with the engine on that day, and that they had no trouble at that point; that there was nothing unusual in any way about the starting of the train from Platow that was ever called to his attention on that day. He testified that if the engineer had opened his throttle and the train had made a lurch, that would have been what he would call a violent jerk, and may cause a jerk in the train at the point where plaintiff boarded the car; that it would depend upon the condition of the train. When asked if a jerk sufficient to have thrown a person down would not have been an unusual jerk on this train, he answered: "That might depend upon the condition of the person."

Clarence Matthews, who was brakeman on this train on that day, testified that the time was so distant that he did not remember any unusual occurrence; nobody made any complaint to him, and he did not remember whether any one boarded the train at Platow on that day; that he remembered no unusual jerk of any kind at that time; that the train always jerked more or less in stopping and starting.

The train auditor on this train testified that he remembered nothing about any...