Robert v. New York Cent. R. Co.

• Decision Date: 06 December 1938
• Docket Number: No. 24719.,24719.
• Citation: 122 S.W.2d 1
• Parties: ROBERT v. NEW YORK CENT. R. CO.
• Court: Missouri Court of Appeals

122 S.W.2d 1

ROBERT v. NEW YORK CENT. R. CO.

No. 24719.

St. Louis Court of Appeals. Missouri.

December 6, 1938.

Rehearing Denied December 20, 1938.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be published in State Reports."

Action by Douglas W. Robert against the New York Central Railroad Company, a corporation, for injuries sustained by plaintiff while a passenger on defendant's railroad train. Verdict and judgment for the defendant and from an order of the court granting plaintiff a new trial, defendant appeals.

Affirmed and remanded.

Wilton D. Chapman, of St. Louis, for appellant.

C. O. Inman, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for a personal injury sustained by plaintiff while a passenger on defendant's railroad train.

The trial, with a jury, resulted in a verdict for defendant and judgment was given accordingly. From the order of the court granting plaintiff a new trial, defendant appeals.

The court in its order granting a new trial failed to state the ground or grounds on which it based its order.

The grounds assigned in the motion for a new trial are as follows:

First, the verdict is against the weight of the evidence; second, the verdict is contrary to the instructions of the court; third, the verdict is the result of passion and prejudice on the part of the jury engendered by improper remarks of defendant's counsel; and, fourth, the court erred in giving defendant's instruction No. 3.

Plaintiff in his petition alleges that on the evening of September 6, 1936, having dined in the dining car of defendant's train, he was leaving the dining car by the front door thereof to return to his berth in the pullman car, and passed out of the front door of the diner; that as he stepped upon the platform of the diner the car gave a sudden and violent lurch sidewise, throwing him around so that he was facing the door; that then in order to regain his balance he put up his hands against said car; that the door of said car was fitted with a spring for the purpose of closing it automatically; that the spring was a strong and powerful one; that he could not tell just where his hands were coming in contact with the car, and his right hand went partly against the frame of the door upon the side upon which the hinges were fastened; that at the time he placed his hand against the door frame the door was open and unguarded, and the door was by the spring closed, and closed upon the end of his right thumb, mashing it and tearing the flesh on the side and end from under the nail and destroying the nail; that his injury was the result of the negligence of defendant in permitting the car to lurch and throw him into a dangerous position where he was liable to be and was injured, and in failing to so guard the open place or crack as to prevent the injury.

Plaintiff testified as follows:

"The diner was near the rear of the train, but my pullman reservation was about four cars forward from the diner. After I had finished my meal I walked through a narrow hallway on the side of the kitchen of the diner to this narrow door that opened out on a platform. I opened that with my right hand and had to pull right hard because of the spring that was there, and I opened it and stepped out on the platform of the diner, and as I got out there the car moved sideways and I was thrown (indicating) completely around so that I faced the door, it was a sideways motion that threw me around facing the door, and I threw up my hands against the car to keep myself from falling, and as I did so the door closed and caught my thumb in the crack on the hinged side. It caught the flesh at the side and top of the thumb. It tore that down and broke the flesh and pulled the flesh from under the nail. It was bleeding, and as soon as I was caught, and had time to emit a yell, I opened the door with my left hand and released my right hand. The lurch of the car was, in my experience, and I have traveled over a good many railroads, a violent lurch. Certainly it was sudden because I was totally unexpecting such a thing as that. In the other cars on that train on the hinged side of the doors there was a strip of wood three or four inches wide fastened to the frame of the door on the hinged side by hinges and springs. By these springs a strip of wood is held over against the door and as the door is opened the strip of wood follows the door and rests against it even when it is wide open so that the crack on that side of the door is completely closed by this strip of wood. It is called an anti-pinching device. This dining car door where I was injured was not equipped with this anti-pinching device. I have ridden on trains for a great many years."

At the time of the accident the train was not stopping or starting, but was running at a speed of about 35 or 40 miles an hour between Boston and Springfield, Massachusetts.

The pullman and train conductors testified that they did not notice any unusual movement of the train. They were, however, not in the diner at the time of the accident.

Defendant contends here that its instruction in the nature of a demurrer to the evidence should have been given and the motion for a new trial overruled for the reason that the lurch of the dining car which caused plaintiff's injury was not shown to be such as to indicate negligence on the part of the defendant.

To support this contention defendant relies chiefly on Elliott v. Chicago, Milwaukee & St. Paul R. Co., Mo.Sup., 236 S.W. 17. In that case the plaintiff testified that the movement of the car which caused her injury was an awful jolt or jar, a very hard and very unusual jar, and the worst jar she had ever witnessed on the train in her life; that the jolt or jar threw her against the side of the seat and threw her grip from the seat to the floor; that she would have fallen to the floor if she had not caught the seat. The conductor of the train testified that a jar or jolt on that train sufficient to throw a passenger down was very unusual and extraordinary. It was held that this testimony of the conductor in connection with the plaintiff's testimony that she was thrown against the side of the seat and would have gone down on the floor if she had not caught the seat was sufficient unquestionably to take the case to the jury, though it was held that the plaintiff's characterization of the movement of the car as an awful jolt or jar, or a very hard jar, carried no definite meaning, and that her opinion that it was unusual did not have any probative value because it did not appear that she was sufficiently qualified by experience or observation to give an opinion as to what incidents are unusual in the operation of trains. Plaintiff was twenty years old. She was walking in the aisle when the jolt or jar occurred and threw her against the side of the seat. The jar or jolt occurred by the starting of the train.

We do not understand the court in that case to hold that in all cases it is essential that a witness must be an expert, having experience in the management and operation of trains, to qualify him to say that a jolt, jar, jerk, or lurch of a car in which he was riding was unusual or extraordinary. That would compel an injured passenger, in most cases, to go into the camp of his adversary to obtain testimony to prove his case. But, if the court so holds in that case, the holding is out of accord with its more recent decision in Meyers v. Wells, Mo.Sup., 273 S. W. 110. In the latter case the plaintiff was standing on the back platform of defendant's street car as it approached a stopping place, going down grade, and by a jerk of the car was thrown from the car to the street. The court in disposing of that case said [page 114]:

"The plaintiff did not undertake to give absolutely what occurred, saying she could not, owing to the sudden or unexpected nature of the occurrence, but said: `The car was running, and it seemed as though it slowed down in speed suddenly; it was an unusual, violent jerk, perhaps as though the car had suddenly decreased its speed, as though it might be going to stop; a violent jerk, enough to throw me off my feet, throw me off my balance and I lost my balance and pitched out the door to the street.' We think these expressions are sufficiently descriptive and definite. * * * Plaintiff's statement, and the evidence as to the manner, and the force with which her body pitched into the street, and the other circumstances, were enough to justify submitting the question to the jury."

See, also, Zwick v. Swinney, 178 Mo.App. 142, loc. cit. 144, 165 S.W. 1124; Dougherty v. Missouri R. Co., 81 Mo. 325, loc. cit. 329, 51 Am.Rep. 239; Hite v. Metropolitan Street Ry. Co., 130 Mo. 132, loc. cit. 138, 31 S.W. 262, 32 S.W. 33, 51 Am.St.Rep. 555; Redmon v. Metropolitan Street R. Co., 185 Mo. 1, loc. cit. 9, 84 S.W. 26, 105 Am.St. Rep. 558; Ilges v. St. Louis Transit Co., 102 Mo.App. 529, loc. cit. 532, 77 S.W. 93; Maier v. Metropolitan Street R. Co., 176 Mo.App. 29, loc. cit. 34, 162 S.W. 1041; Daniels...