Rhodes v. Missouri Pacific Railroad Company
| Decision Date | 06 November 1923 |
| Citation | 255 S.W. 1084,213 Mo.App. 515 |
| Parties | BELL RHODES, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Cape Girardeau Court of Common Pleas.--Hon. John A Snider, Judge.
AFFIRMED.
Judgment affirmed.
James F. Green and J. C. Sheppard for appellant.
(1) The court erred in permitting witnesses for respondent to give conclusions and opinions as to the unusual jerk of the train. Jones on Evidence (2 Ed.), sec. 359; Elliot v. Chicago M. & St. P. Ry. Co., 236 S.W. 17. (2) The court erred in giving to the jury respondent's instruction No. 1, for the following reasons: (a) The petition pleads specific acts of negligence, and therefore the doctrine of res ipsa loquitur does not apply to this case. Bobbitt v Railroad, 169 Mo.App. 424; Grimm v. Globe Printing Co., 232 S.W. 676; Elliott v. Chicago, M. & St. P Ry. Co., 236 S.W. 17; Smiley v. Kenney, 228 S.W. 857; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; Laycock v. United Rys. Co., 227 S.W. 883. (b) The res ipsa loquitur doctrine not being applicable, the instruction erroneously places the burden on appellant to prove that it was not negligent. (See authorities cited under point 2-a.) (3) The court erred in refusing to give to the jury appellant's instructions in the nature of demurrers to the evidence at the close of respondent's case and at the close of the whole case, for the reason that there was no evidence upon which to base a verdict for respondent. Elliott v. Chicago, M. & St. P. Ry. Co., 236 S.W. 17. (4) The court erred in refusing to grant appellant's motion for new trial, because the verdict is excessive. Lundahl v. Kansas City, 209 S.W. 564; Honeycutt v. St. L. I. M. & S. Ry. Co., 40 Mo.App. 675; Adams v. Street Ry. Co., 174 Mo.App. 5; Sawyer v. Han. & St. Jo R. R., 37 Mo. 246, 247.
Abington & Abington for respondents.
(1) Appellant's first complaint with the action of the trial court is that the court erred in permitting witnesses for respondent to give conclusions and opinions as to the unusual jerk of the train. It has been declared by the decisions of the courts in this State that the character of testimony here complained of hardly comes within the rules of expert testimony; that where the witness is shown to have had considerable experience in riding upon passenger trains and had the means of observing, such witness would be qualified to give an opinion as to the unusual movement of the train. This character of testimony is fully discussed in the following authorities: Daniels v. St. L. I. M. & S. Ry. Co., 181 S.W. 599; Stotler v. Chicago & Alton Ry. Co., 200 Mo. 107; Lawson on Expert and Opinion Evidence (2 Ed.), p. 505. (2) (a) This case was brought and tried on the theory that respondent was a passenger in one of appellant's passenger trains, and was injured by reason of the happening of something unusual in the operation of the train (a sudden and violent jerk, with unusual and unnecessary force), which the law called upon appellant to explain. The petition alleging general negligence, the doctrine of res ipsa loquitur applies. Coudy v. The St. L. I. M. & S. Ry. Co., 85 Mo. 79; Brisco v. Met. Street Ry. Co., 222 Mo. 104; MacDonald v. Met. Street Ry. Co., 219 Mo. 469; Price v. Met. Street Ry. Co., 220 Mo. 443; Stauffer v. Railroad, 243 Mo. 313; Bergfeld v. K. C. Ry. Co., 285 Mo. 654; Brady v. Springfield Traction Co., 140 Mo.App. 421; Lemon v. Chanslor, 68 Mo. 354; 10 Corpus Juris, p. 1023, 1025. (b) The jury was required by respondent's instruction No. 1, to find as true the allegations of her petition, that is, that respondent was a passenger, and by reason of the negligent operation of the train, it gave a sudden and violent jerk with unusual and unnecessary force and as a result thereof she was thrown down with great force and injured, and having so found, the jury was very properly told in instructions that it was the duty of the appellant to show that such sudden and violent jerk could not have been prevented by the exercise on its part of the utmost care, skill and vigilance. Coudy v. St. L. I. M. & S. Ry. Co., 85 Mo. 79; Elliott v. Chicago, M. & St. P. Ry. Co., 236 S.W. 17. (And see authorities under point 2a.) (3) Under this point appellant in its brief charges the court with committing error in refusing to give to the jury its instructions in the nature of demurrers to the evidence at the close of respondent's case and at the close of the whole case. Respondent, under the facts of this case, was entitled to have her case go to the jury; and it would have been error for the court to have given to the jury the instructions asked by appellant. Coudy v. St. L. I. M. & S. Ry. Co., 85 Mo. 79; Daniels v. St. L. I. M. & S. Ry., 181 S.W. 599; Burkett v. Mo. Pac. Ry., 208 S.W. 104; Elliott v. Chicago, M. & St. P. Ry. Co., 236 S.W. 17. (4) The verdict of the jury is not excessive and the court therefore properly overruled appellant's motion for new trial on this assignment of error. Jackman v. St. L. & H. Ry., 231 S.W. 978; Hinkle v. Chicago, B. & Q. Ry. Co., 199 S.W. 227; Hulse v. St. Joseph Ry. Co., 214 S.W. 150.
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, Missouri. She boarded the northbound 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 passage way 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 seat 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 sixty-two 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 twelve and one 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 ever 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:
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...
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