Rice v. Chicago, B. & Q. Ry. Co.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Nortoni
• Citation: 153 Mo. App. 35,131 S.W. 374
• Parties: RICE v. CHICAGO, B. & Q. RY. CO.
• Decision Date: 31 May 1910

131 S.W. 374 153 Mo. App. 35 RICE
v.
CHICAGO, B. & Q. RY. CO. St. Louis Court of Appeals. Missouri. May 31, 1910. Rehearing Denied November 10, 1910.

1. CARRIERS (§ 316) — PASSENGERS — INJURIES — PRESUMPTION OF NEGLIGENCE.

The mere fact of injury to a passenger while on his journey, without any evidence connecting the carrier with its cause, does not raise the presumption of negligence; but where the passenger establishes the relation of passenger and carrier, and indicates that his injury during transit resulted from a breach of a duty which the carrier owed pertaining to his safety, the presumption of negligence of the carrier arises, and it must, to defeat a recovery, explain it away.

2. CARRIERS (§ 280) — PASSENGERS — CARE REQUIRED.

A carrier is not an insurer of the safety of its passengers, but it must exercise the highest degree of care of a very prudent person in view of the circumstances.

3. CARRIERS (§ 316) — INJURIES TO PASSENGERS — NEGLIGENCE — PRESUMPTION.

A passenger who shows that the train collided with the top of a tree which had blown across the track, and that he was injured in consequence thereof, shows facts from which the presumption of negligence of the carrier arises, and it must show its freedom from breach of duty.

4. NEGLIGENCE (§ 121) — RES IPSA LOQUITUR.

Where the thing which occasions the injury complained of is conclusively shown not to have been under the management or within the control of defendant, the doctrine of res ipsa loquitur does not obtain, but where the thing is shown to be under the management of defendant or his servants, and the accident is such as under the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation of defendant that the accident arose from want of care.

5. CARRIERS (§ 284) — PASSENGERS — CARE REQUIRED — ASSAULT BY THIRD PERSON.

A carrier is under no obligation to protect a passenger from the criminal assault of persons in no way connected with the carrier, and which assault there was no reason to anticipate.

6. CARRIERS (§ 316) — PASSENGERS — NEGLIGENCE — PRESUMPTIONS.

The presumption of negligence of a carrier arising from proof of injury to a passenger in consequence of the train colliding with an obstruction on the track is not overcome in every case by the carrier showing conclusively that the obstruction was one not under its control, because there are instances where a carrier is otherwise negligent, and its negligence has operated proximately to occasion the obstruction.

7. CARRIERS (§ 316) — PASSENGERS — NEGLIGENCE — PRESUMPTIONS.

The presumption of negligence of a carrier arising from proof of injury to a passenger while in transit obtains until the carrier has overcome the same by proving that it discharged every obligation laid on it to the end of insuring the safety of the passenger in the circumstances of the case.

8. CARRIERS (§ 291) — PASSENGERS — CARE REQUIRED — OBSTRUCTIONS NEAR TRACK.

A carrier of passengers must look out for and remove such objects along and adjacent to its roadway as may threaten the safety of its passengers, and where threatening objects, such as decayed trees, stand immediately adjacent to the right of way and are sufficiently menacing to evince probable danger, it must exercise high care as to them, and must remove them when it can do so without becoming a trespasser.

9. CARRIERS (§ 291) — PASSENGERS — CARE REQUIRED — REMOVAL OF TREES NEAR TRACK.

Rev. St. 1909, § 3049 (Rev. St. 1899, § 1035; Ann. St. 1906, p. 898), authorizing railroads to enter on the lands of any person and cut down standing trees that may be in danger of falling on the tracks, making compensation therefor, imposes a duty on a railroad, subject to the statute as a part of its charter, and the railroad must look out for and remove menacing trees standing adjacent to the right of way, and, for its failure so to do, it must respond in damages for breach of duty.

10. CARRIERS (§ 318) — INJURIES TO PASSENGERS — NEGLIGENCE — EVIDENCE.

In an action for injuries to a passenger in consequence of the train colliding with a tree on the track, evidence held to justify a finding

[131 S.W. 375]

of negligent failure of the carrier to remove the tree standing immediately adjacent to the right of way.

11. CARRIERS (§ 314) — PASSENGERS — ACTIONS FOR INJURIES — PLEADING.

A petition in an action for injuries to a passenger in consequence of the train colliding with a tree on the track, which alleges generally the existence of the relation of passenger and carrier, and the act of the carrier in permitting a tree to be on its track, and in running its train into it to the passenger's injury, states a cause of action, for the negligence of the carrier arises on proof of the allegations, and, where the allegations are proved, the burden is on the carrier to show its freedom from negligence.

12. ACTION (§ 1) — "CAUSE OF ACTION."

The term "cause of action" signifies plaintiff's primary right, and defendant's wrongful violation thereof.

13. CARRIERS (§ 315) — INJURIES TO PASSENGERS — ACTIONS — PLEADING AND PROOF.

Where, in an action for injuries to a passenger in consequence of the train colliding with a tree on the track, the carrier, after the passenger's prima facie case made by invoking the presumption of negligence, sought to show that the tree recently fell on the track and that it came there without any negligence on its part, the passenger in rebuttal could show the carrier's negligence in permitting the tree to stand beside the right of way, because the tree was a menace on account of its decayed and burned condition, though the petition merely alleged generally the negligence of the carrier in permitting the tree to remain on the track, and in negligently running the train into it.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by Willard D. Rice by Augustus A. Rice, his next friend, against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

H. H. Trimble, Palmer Trimble, and McKee & Jayne, for appellant. N. M. Pettingill and T. L. & L. J. Montgomery, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant, a carrier of passengers. Plaintiff recovered, and defendant prosecutes the appeal.

The matter for consideration presents, first, the question as to whether or not the doctrine of res ipsa loquitur obtains on the facts of the case; and, second, as to whether the judgment for plaintiff may be sustained, though it was given on a detail of negligence not pointedly alleged in the petition, although within the general scope of the cause of action alleged, which relates to defendant's breach of duty to exercise high care for plaintiff's safety. Defendant is a public or common carrier of passengers. It appears plaintiff was a passenger on its train en route from Downing to Memphis, Mo., and during the transit the train collided with the top or several limbs of a large tree which had fallen across the track. Upon colliding with the branches of the tree top, the locomotive and cars passed through the same, but while passing one limb scraped along the side of the car, and shattered the glass in the window adjacent to which plaintiff was sitting, which resulted in destroying his eye. The petition contains a general allegation of negligence to the effect that defendant breached its duty to exercise high care for plaintiff's safety by allowing its track to be obstructed in permitting a large tree to be and remain on and across said track so that the train and car upon which plaintiff was riding ran into and collided therewith. At the trial plaintiff introduced evidence tending to prove that he was a passenger on defendant's train en route from Downing to Memphis about 7:30 o'clock in the evening when the train ran into or collided with an obstruction on the track, and that such obstruction was the top branches of a large tree. It was shown that upon running into the tree top the engine passed through the same and a limb of about two or three inches in diameter scraped along the side of the passenger coach in which plaintiff was being conveyed with such force as to break and dissever the glass in the window adjacent, a portion of which glass flew into and destroyed his eye. The proof on the part of plaintiff in no manner suggested how the tree top came upon the track, nor did it suggest how long it had been there nor from whence it came. Indeed, plaintiff rested his case prima facie on the presumption of negligence which usually attends the facts of showing a collision on a railroad with an obstruction on the track when the relation of passenger and carrier exists. At the conclusion of this proof, defendant requested the court to direct a verdict for it on the theory that a presumption of negligence did not arise on the facts appearing, and it devolved upon plaintiff to make a showing to the effect defendant had either placed the tree top on its road or had known, or, by the exercise of due care, might have known its presence, to the end of showing a breach of its obligation as to removing the same. The court declined to instruct a verdict for defendant, and tried the case as though the presumption of negligence obtained.

It is argued here on the part of defendant that the doctrine of res ipsa loquitur as between carrier and passenger obtains only

131 S.W. 376

in those cases where it appears the injury resulted from some defect in the carriage or appliances for transportation or in the construction of the road, such as a defect in the track or a bridge or a collision with another train on the same track, for it is said these things in and of themselves suggest a dereliction of duty somewhere on the part of the carrier as to the means...