Siegel v. Illinois Cent. R. Co.

• Decision Date: 05 January 1915
• Docket Number: No. 13895.,13895.
• Citation: 172 S.W. 420,186 Mo. App. 645
• Parties: SIEGEL v. ILLINOIS CENT. R. CO.
• Court: Missouri Court of Appeals

172 S.W. 420

186 Mo. A. 645

SIEGEL v. ILLINOIS CENT. R. CO.

No. 13895.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

1. WITNESSES (§ 354) — IMPEACHMENT — REPUTATION FOR TRUTH AND VERACITY — COMPETENCY.

The testimony of a witness that he knew the reputation of another witness for truth and veracity, and that it was not good, will not be stricken out merely because, on cross-examination, he is unable to give anything like a correct definition of the terms; but the weight of his testimony is for the jury.

2. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — ERRONEOUS INSTRUCTIONS.

Where, in an action for injury to a passenger by the derailment of a coach, the carrier defended on the ground that the passenger was in a coach where he had no business to be, error in an instruction submitting the issue of contributory negligence was not prejudicial.

3. CARRIERS (§ 280) — CARRIAGE OF PASSENGERS — CARE REQUIRED.

A carrier of passengers must, so far as it is capable by human care and foresight, carry passengers safely, and is responsible for injuries caused by the slightest negligence.

4. CARRIERS (§ 316) — PASSENGERS — INJURIES — PRIMA FACIE CASE OF NEGLIGENCE.

Where a passenger was injured by the derailment of the coach in which he was riding, a prima facie presumption arose that the accident was caused by the negligence of the carrier, and to escape liability it must show that the injury was the result of inevitable accident, or some cause which human precaution and foresight could not have averted.

5. CARRIERS (§ 290) — CARRIAGE OF PASSENGERS — LIABILITY FOR INJURIES.

A carrier is responsible for the operation of the train to which a pullman car is attached, though owned by an independent company, and is liable for negligent operation, causing derailment thereof.

6. CARRIERS (§ 239) — CARRIAGE OF PASSENGERS — LIABILITY FOR INJURIES.

A passenger, who for a temporary purpose of his own enters into a Pullman car forming a part of the train, without paying the extra fare demanded for the privilege of riding therein, remains a passenger, and entitled to protection as such.

Appeal from St. Louis Circuit Court; Wm. T. Jones, Judge.

Action by Isidor Siegel against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant. McShane & Goodwin and Wm. Baer, all of St. Louis, for respondent.

REYNOLDS, P. J.

Action by plaintiff for damages resulting from injuries sustained by him while a passenger on one of the defendant's trains. The petition is in the usual form, charging that while plaintiff was a passenger on the defendant's road in transit from Paducah, Ky., to St. Louis, Mo., the defendant "negligently and carelessly caused and permitted, in a manner to plaintiff unknown, the car which plaintiff boarded at Nashville, Tenn., in which plaintiff was then and there being transported by defendant, for hire, as aforesaid, to be derailed while moving rapidly, and wrecked, and thereby directly and proximately caused plaintiff then and there to be injured and damaged." Specifying the damage, plaintiff demands judgment for $10,000.

The answer is a general denial.

There was evidence on the part of plaintiff to the effect that he, a Russian Jew, had lived in this country for several years, but did not understand the English language very well. Intending to go to St. Louis to buy goods for his store, plaintiff boarded the train of defendant at Paducah, Ky., having purchased a ticket entitling him to first-class passage to St. Louis. He testified that when he reached Duquoin, Ill., he changed cars, boarding a train for St. Louis; that when he did so, he asked the conductor for a sleeper and the conductor told him that the train did not carry sleepers. He entered a car which he called "a Pull car," but which it appears was an ordinary day coach. Shortly after midnight he changed from that into a chair car, paying the conductor $1.25, the extra fare charged for riding in that car. He took a seat near one end of the car and early in the morning awoke, and desiring to go to the toilet room, he tried the door of that room in the car in which he was riding and found it locked. He then went into an adjoining car, which it appears was a Pullman and was met by the colored porter, of whom he inquired where the toilet room was. The porter told him it would be "opened directly." Plaintiff testified that he went back into the chair car and was not sure whether he had sat down or was standing up when the car was derailed and he was thrown and received the injuries complained of, the car being thrown over on one side. The testimony of plaintiff was very positive that the car in which he had been riding, that is the chair car, was the one which was derailed, He denied very positively that he was in the sleeper when the accident occurred. He was helped up and received medical and surgical treatment when the train arrived at St. Louis, particularly for a hurt to his ear which he claimed he had sustained in consequence of the accident. That, in substance, is the testimony of plaintiff.

On the part of defendant there was testimony to the effect that the chair car in which plaintiff had been riding was not overturned; that the wheels of the rear truck of that chair car had left the rails and ran along the ties for some 10 or 15 feet; that the chair car remained standing in such a position that anybody could sit in it or walk through it without any difficulty after the train stopped; that the sleeper immediately back of this chair car was the only car in the train that had turned over; that plaintiff was in this sleeper at the time he was hurt, attempting to wash in the toilet room; that the conductor of the sleeping car, seeing him there and in his socks, asked him what he was doing there and while they were talking the sleeper turned over. Plaintiff had told the porter of the sleeper, according to the latter, that he had a berth in that sleeper. Plaintiff was afterwards picked up by members of the train crew, or perhaps others, and carried into a car of the train and brought to St. Louis.

The contention of defendant in this case is that plaintiff, not having a Pullman car ticket and not being entitled to ride in that car, was a trespasser and could not recover.

At the instance of plaintiff the court instructed the jury, in substance, that if they believed from the evidence that plaintiff was a passenger upon a train of defendant at the time he claims to have been injured,

"then, having received plaintiff upon board of such train, the due obligation of defendant to plaintiff was to use the highest degree of care practical among prudent, skillful and experienced men in that same kind of business, to carry him safely, and a failure of the defendant (if you believe there was a failure) to use such highest degree of care would constitute negligence on its part; and the defendant would be responsible for all injuries resulting to plaintiff, if any, from such negligence, if any. And if you believe from the evidence that plaintiff was a passenger on one of defendant's trains, and that said train upon which he was a passenger (if you find such), while being operated by defendant, and that the car or portion of said train on which plaintiff was a passenger (if you find such) became partially derailed, the presumption is that it was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish by the preponderance of all the evidence that there is no negligence on its part, and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could not have avoided. The court instructs you that on the pleadings and evidence in this case plaintiff was not guilty of any negligence that contributed to or caused any of the injuries for which he sues."

Continuing, the court instructed the jury as to what they were to consider in determining the measure of damages, if they found in favor of plaintiff, awarding him not to exceed the amount prayed for in his petition.

On behalf of defendant, the court instructed the jury as to the credibility of witnesses; that the burthen of proof is on plaintiff, defining that, and as to the weight to be given the opinion of experts.

In support of its theory, defendant asked the court to give to the jury the following instruction:

"If the jury find from the evidence in this case that passengers riding on the train on which plaintiff was riding at the time of the wreck referred to in this case were required to pay extra compensation before being allowed to ride in any sleeping car on said train; and if the jury further find from the evidence in this case that the plaintiff knew of said requirement at the time of and prior to said wreck; and if the jury further find from the evidence in this case that the plaintiff did not pay the extra compensation for riding in a sleeping car, but paid only such fare as would entitle him to ride in a day coach or chair car on said train; and if the jury further find from the evidence in this case that, without having paid such additional compensation, plaintiff entered a sleeping car constituting part of said train and attempted to use the washroom of said sleeping car, and knowing it to be a sleeping car, and to ride in said sleeping car, and that whilst plaintiff was in said sleeping car a wreck occurred and said sleeping car was overturned and plaintiff was injured, then the plaintiff is not entitled to recover and your verdict must be for the defendant."

The jury returned a verdict in favor of plaintiff in the sum of $1,750, judgment following, from which, interposing a motion for new trial and excepting to the action of the court in overruling it, defendant appealed.

The only points argued here for reversal of the judgment and only...