Rissmiller v. St. Louis & H. Ry. Co.

• Decision Date: 05 July 1916
• Docket Number: No. 14394.,14394.
• Citation: 187 S.W. 573
• Court: Missouri Court of Appeals
• Parties: RISSMILLER v. ST. LOUIS & H. RY. CO.

187 S.W. 573

RISSMILLER v. ST. LOUIS & H. RY. CO.

No. 14394.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Rehearing Denied July 18, 1916.

Appeal from Hannibal Court of Common Pleas; Wm. T. Ragland, Judge.

"Not to be officially published."

Action by Ida E. Rissmiller against the St. Louis & Hannibal Railway Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.

J. D. Hostetter, of Bowling Green, and Mahan, Smith & Mahan, of Hannibal, for appellant. Eby & Hulse, of Hannibal, for respondent.

REYNOLDS, P. J.

This is an action for damages for personal injuries alleged to have been sustained by respondent, while a passenger on a train operated by appellant, on its road. The train was known as the "Perry train." The accident is said to have occurred on the morning of September 21st, 1912.

It is averred in the petition that the train upon which plaintiff was a passenger consisted of a locomotive engine, a passenger coach, baggage and mail car and other cars, and that after plaintiff had been received as a passenger, having paid her fare, and when the train had proceeded to a point near the platform of defendant's station in the city of Hannibal, and before it had reached the station platform, the agents of defendant in charge of the train uncoupled the cars making up the train, taking away from and out of it the locomotive engine and all the other cars except the passenger coach and the baggage and mail car, leaving the passenger coach and this baggage and mail car standing on the line of the railroad track at a point near the station platform; that after defendant had taken away from and out of the train the locomotive engine and the other cars, which appear to have been freight cars, and while the plaintiff as a passenger was seated in the passenger coach, and while it was standing near the station platform, and before it had reached the platform, the defendant, through its agents and servants, "so carelessly and negligently ran and moved one of its locomotive engines into, against and upon said passenger coach as to and did cause and produce a sudden movement, jerk, jolt and jar of said passenger coach in which the plaintiff was then and there seated as aforesaid, and that said sudden movement, jerk, jolt and jar of said passenger coach as aforesaid was caused and produced by the carelessness and negligence of defendant, its agents and servants in running, managing and operating said engine and said passenger coach as aforesaid; and that as the direct and proximate result of said sudden movement, jerk, jolt and jar of said passenger coach and of said carelessness and negligence of defendant as aforesaid, the plaintiff was then and there and thereby thrown against the seats and backs and arms of the seats and other portions of said passenger coach and the contents thereof in such a manner and with such force that plaintiff was then and there and thereby greatly injured, bruised, lacerated and crippled, both internally and externally." Describing the injuries and averring that she has not yet recovered from them, and is wholly disabled and incapacitated for work or labor of any kind, and has been so disabled and incapacitated since the date of the accident, and that her injuries are permanent, plaintiff avers that the before mentioned "sudden movement, jerk, jolt and jar of said passenger coach and said injuries to plaintiff aforesaid were caused by and were the direct and proximate result of the negligence and carelessness of the defendant, its agents and servants in the running, handling, management and operation of said locomotive engine and cars as aforesaid." Averring that she had expended large sums of money and incurred great expense for medical attendance, medicine, etc., and had been subjected to and suffered great bodily pain and suffering and mental anguish, plaintiff demands judgment in the sum of $15,000.

The answer was a general denial.

The case was tried before the court and a jury and resulted in a verdict for plaintiff in the sum of $5,500. Judgment followed accordingly, from which defendant, interposing a motion for new trial, the latter accompanied by affidavits of newly discovered evidence, and excepting to the action of the court in overruling it, defendant has duly perfected its appeal to our court.

There are four errors assigned here to the action of the court. It will be necessary, for the disposition of this appeal, to notice at length only one of them, which attacks the first instruction given at the instance of respondent. That instruction, so far as pertinent to the attack upon it, told the jury that if they found and believed from the evidence that while plaintiff, as a passenger, was seated in the passenger coach, and while it was standing near the station platform, "the agents and servants of defendant, in charge of said train and said passenger coach at the time, so carelessly and negligently ran...