Rooker v. Deering Southwestern Ry. Co.

• Decision Date: 29 January 1923
• Citation: 247 S.W. 1016,215 Mo.App. 481
• Parties: MATTIE ROOKER (MORGAN), Respondent, v. DEERING SOUTHWESTERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

247 S.W. 1016

215 Mo.App. 481

MATTIE ROOKER (MORGAN), Respondent, v. DEERING SOUTHWESTERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 29, 1923

Appeal from the Circuit Court of Pemiscot County.--Hon. Sterling H McCarty, Judge.

AFFIRMED. (on condition).

Ward & Reeves for appellant.

(1) Passenger who is in a safe place and leaves it and goes to an unsafe place and occupies it without the knowledge or consent of the defendant's employees and by reason of assuming this dangerous position is injured, cannot recover. Carrol v. Railway, 107 Mo. 653; Tuley v Railway, 41 Mo.App. 432; Ashbrook v. Railway, 18 Mo.App. 290; Harris v. Railway, 89 Mo. 233; Ely v. Railway, 141 Mo.App. 708. (2) Not the duty of railroad company to furnish someone to assist passengers in alighting from trains. Strauss v. Railway, 75 Mo 190, 191; Hurt v. Railway, 94 Mo. 255, 263; Lafflin v. Railway, 106 N.Y. 136; Deskins v Railway, 151 Mo.App. 432. (3) It was error to admit testimony of witness as part of res gestae, where it was not shown in evidence that the witness saw plaintiff fall from the train. 3 Wigmore on Evidence, sec. 1751; State v. Brown, 64 Mo. 371; Koenig v. Railway, 173 Mo. 721; Barker v. Railway Co., 126 Mo. 148-150. (4) Argument of plaintiff's attorney to jury was improper. Hickman v. Light and Power Co., 226 S.W. 570; Cameron v. Cameron, 162 Mo.App. 110; State v. Spiver, 191 Mo. 112. (5) The verdict was excessive, and constitutes reversible error. Lowder v. Railway, 221 S.W. 800; Bragg v. Railway, 192 Mo. 365-366.

Mayes & Gossom for respondent.

(1) Testimony of witness Chilton was properly admitted as part of the res gestae, as being a spontaneous exclamation made at the time of the accident. Leahey v. Railway, 97 Mo. 165; State v. Kaiser, 124 Mo. 667; State v. Walker, 78 Mo. 380; Kelly v. Railroad, 225 S.W. 133. (2) The verdict was not excessive. Lowder v. Kansas City Rys. Co., 221 S.W. 800; Pry v. Railroad, 73 Mo. 128; Hays v. Railroad, 183 Mo.App. 608.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

The plaintiff in this suit recovered a judgment in the circuit court for $ 3000, the full amount sued for in the petition. Her cause of action is based on a petition alleging as the sole ground of negligence that the defendant railroad company, while carrying her as a passenger on one of its trains, negligently and carelessly operated its train with a sudden and unusual jerk which threw her from the train and to the ground while said train was in motion and while she was standing on the platform of the coach preparatory to alighting from the train at her station. This is the third appeal to this court; the judgment in the first appeal being disposed of in the case of Rooker v. Deering Southwestern Ry. Co., 204 S.W. 556, and the second appeal is reported in 226 S.W. 69. We refer to the two former opinions as the facts therein stated as to the principal points in evidence are the same as on this appeal.

A number of errors are alleged on this appeal, some of which were disposed of in the former opinions rendered in the case. We will not go into the question raised by the appellant on demurrer to the evidence other than to refer to the former opinions and state that there was a clear conflict of evidence on what the defendant did, and if plaintiff's version is true, there is liability to her for negligence. It is undisputed that she bought a ticket from Caruthersville to the station or switch of Blazer, the plaintiff living very near the latter place. Blazer, from the evidence, is the intersection of the plaintiff's tracks with what is described in the petition as the Frisco tracks in Pemiscot County. It is a railroad crossing where there are gates which are required to be opened by the operatives of defendant's trains before the crossing can be made. Plaintiff says that she was seated in the coach and that the brakeman came through and called her station, Blazer; that the train slowed down and was running very slowly when she arose from her seat, went to the front of the car, out on the platform, took hold of the railing with her left hand, her right hand holding some bundles she was carrying. While standing there the train gave an unusual jerk which caused her to be thrown from this platform to the ground. She then testified as to her injuries, tending to show that she was permanently injured. In this connection, we will say that plaintiff was corroborated by no witness placed on the stand--and some of them being her own witnesses in former trials--as to the unusual jerk of this train that she says threw her off; however, that is a question of fact as to whether that took place, and the jury is the tribunal to make the correct finding in that respect.

The instructions on this trial complained of were practically the same as those in the trial on the last appeal, and we have no reason to change our opinion in respect to same.

Appellant's contention that plaintiff's main instruction charged grounds of negligence other than contained in the petition, is an incorrect charge. The instruction does not attempt to base a recovery on the ground that the train failed to stop at Blazer. It was a disputed question of fact whether the train did stop or did not stop, and the only ground that would justify the plaintiff in going out on the platform and remaining there at the time she was there, would be that the train had not stopped prior to crossing the Frisco tracks. There being evidence that the train at times stopped first on one side of the Frisco crossing and at other times on the other side was sufficient reason for plaintiff, if the train had not stopped on the east side of the tracks on the day this accident occurred to go to the front platform expecting it to stop on the west side, because she had a ticket calling for her to get off at Blazer; and in order for the jury to find for her, they must have found that the train did not stop on the east side of the track, and that was testified to by the plaintiff. The instruction requires that they find that there was an unusual jerk, and that was the ground charged in the petition and is the only ground, when read in the light of the evidence, that is required in plaintiff's first instruction; and especially is this true when read in the light of defendant's instruction which explicitly told the jury they could not hold defendant liable for not stopping the train, but that liability was only based upon an unusual jerk.

There are some new phases in this trial which make us seriously doubt whether the trial this time was wholly free from partiality. To begin with, on the voir dire examination of jurors, it was shown that one of the number lived on the same farm plaintiff lived on and that her husband, who, by the way, became plaintiff's husband since the former trial in this cause, had talked to him about this case, and this juror admitted on examination that he had formed some impression about it before the trial, but stated that he could try the case and render a verdict free from any opinion that he had formed. Of course, this juryman was stricken from the list by the defendant but it was improper to say the least, for the trial court to have permitted him to remain on the panel. Common knowledge and experience makes it almost...