Smith v. Chicago, B. & Q. R. Co.

• Decision Date: 31 December 1917
• Docket Number: No. 12221.,12221.
• Citation: 199 S.W. 707
• Court: Missouri Court of Appeals
• Parties: SMITH v. CHICAGO, B. & Q. R. CO.

199 S.W. 707

SMITH v. CHICAGO, B. & Q. R. CO.

No. 12221.

Kansas City Court of Appeals. Missouri.

December 31, 1917.

Appeal from Circuit Court, Livingston County; Arch. B. Davis, Judge.

"Not to be officially published."

Action by W. M. Smith against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Scott J. Miller, of Chillicothe, for appellant. F. Sheets, of Chillicothe, and J. C. Carr, of Cameron, for respondent.

BLAND, J.

This is a suit for personal injuries. There was a verdict and judgment for the defendant, and plaintiff has appealed. In his petition plaintiff alleges that while he was working in a stationary freight car on a loading and unloading switch in Chillicothe, Mo., the defendant caused another car, with great violence and without warning, to be "kicked" into the one in which plaintiff was working, knocking plaintiff's hay, which was in bales, down upon him, and throwing him out of the car, and that:

"Plaintiff was, by said fall, badly mashed, bruised, and injured, so that the plaintiff, being a well man and strong prior to said injury, was by said hurt received from being thrown from said car and struck by the baled hay, caused by the impact against said car by the car turned loose with such great force on the loading and unloading track by the agents and servants of the defendant, and received therefrom a serious rupture on both sides, commonly called a strangulated hernia, and is thereby permanently injured, and will go through life compelled to wear therefrom and as a direct cause thereof a truss to hold the intestines back in place, and does and did, from the injury, suffer great bodily pain and mental anguish, and as the direct cause from said injury to suffer great bodily pain and mental anguish, and will never again be a well man and able to do a full day's work; that he is but the age of 57 years."

Plaintiff at the trial offered to show that he had lost his hearing by reason of said accident. The court refused to permit him to make such a showing, on the ground that there was no allegation of such injury in the petition. Plaintiff urges that the court erred in so ruling.

The language of the petition is somewhat confusing, but we think it apparent that loss of hearing is not covered. Hall v. Manufacturers' Coal & Coke Co., 260 Mo. 351, 168 S. W. 927, Ann. Cas. 1916C, 375; Johnson v. Railroad, 192 Mo. App. 1, 178 S. W. 239. We have carefully examined the record...