St. Louis & S. F. Ry. Co. v. Gosnell

• Decision Date: 12 May 1909
• Docket Number: Case Number: 2206 OK Ter
• Citation: 101 P. 1126,1909 OK 130,23 Okla. 588
• Parties: ST. LOUIS & S. F. RY. CO. v. GOSNELL
• Court: Oklahoma Supreme Court

1909 OK 130

101 P. 1126

23 Okla. 588

ST. LOUIS & S. F. RY. CO. v. GOSNELL

Case Number: 2206 OK Ter

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 1. CARRIERS -- Carriage of Passengers -- Freight Trains. Where a railroad company carries passengers for hire on its freight trains, it must exercise the same degree of care as is required in the operation of its regular passenger trains; the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.

2. SAME -- Negligence. Plaintiff took passage for hire on defendant's freight train from S. to L., and took a seat in the "caboose." Just before reaching C., an intermediate station, the engine stopped at a water tank about 150 yards from the depot, when plaintiff, thinking it had reached the station, stepped out on the rear platform to talk to a friend seated on the car steps. Finding it had not reached the station, plaintiff, when the train started again, stepped back in the "caboose" on the way to his seat, and turned and was standing with his hands against the casings of the rear door when the train suddenly stopped at the depot with such jar that he was knocked off his feet and injured. Held, that from these facts no inference of negligence on the part of the railroad company could be legitimately drawn, and that a motion to direct a verdict for defendant should have been sustained.

Flynn & Ames and R. A. Kleinschmidt, for plaintiff in error, cited: Wallace v. W. N. C. R. R. Co., 98 N. C. 494, 4 S.E. 503; Harris v. R. R. C. (Mo.) 1 S.W. 325; Olds v. R. R. Co. (Mass.) 51 N.E. 450; Partuchek v. Wabash R. R. Co. (Mo.) 74 S.W. 368; A., T. & S. F. v. Lindley (Kan.) 22 P. 703; Erwin v. R. R. Co. (Mo.) 68 S.W. 88.

McElhoes & Ferris and Ahren & McDaniels, for defendant in error.

Error from District Court, Comanche County; F. E. Gillette, Judge.

Action by S N. Gosnell against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Flynn & Ames and R. A. Kleinschmidt, for plaintiff in error

McElhoes & Ferris and Ahren & McDaniels, for defendant in error

TURNER, J.

¶1 On April 28, 1904, S. N. Gosnell, defendant in error, plaintiff below, sued the St. Louis & San Francisco Railway Company, plaintiff in error, defendant below, in the district court of Comanche county in damages for personal injuries alleged in his amended petition to have been by him sustained on or about August 21, 1903, on which date he says he became a passenger for hire on defendant's railway from the town of Snyder to the town of Lawton, in this state; that as such he took passage on one of defendant's regular freight trains with "caboose" attached, which, upon its arrival at the town of Cache, "was stopped by defendant negligently and wilfully and with a sudden and terrific jar and with such force, violence, wantonness, and negligence on the part of defendant that plaintiff without any fault on his part was thrown violently and forcibly against a box," and seriously injured, for which he prayed judgment for $ 5,000. For answer defendant pleaded a general denial, a specific denial of negligence, and contributory negligence. There was trial to a jury which resulted in a judgment for plaintiff for $ 750, to reverse which, after motion for a new trial filed and overruled, defendant brings proceedings in error to this court. At the close of the testimony on both sides defendant moved the court to direct a verdict for defendant, which was overruled, and this is assigned as error.

¶2 There is no material conflict in the testimony. The evidence discloses that plaintiff, aged 51 years, lived at Frederick; that, while on his way to Lawton, he took passage for hire on defendant's freight train at Snyder, and, with several others, took seats in the "caboose" attached to the rear end; that said train consisted of 14 cars 35 feet long in addition to an engine and tender; that just before reaching Cache, an intermediate station, and after the train had passed into the switches, the engine stopped at a water tank about 150 yards from the depot; that plaintiff, who was seated looking out the open back door of the caboose, thinking the train had reached the station, stepped out on the rear platform of said car to talk to a fellow passenger seated on the car steps; that finding it had not reached the station, plaintiff, when the train again started up, which it did in a very short time, stepped back into the caboose on his way to his seat, and turned and was standing with his back to the engine and his hands against the casings of the rear door, when the train, with the caboose opposite the the depot platform, suddenly stopped with such a jar that plaintiff was knocked off his feet and his back injured in the fall against the corner of a box used for a seat; that three of his ribs were broken, in consequence of which he was confined to his room for two weeks and incurred a bill of $ 4.50 for medical services; that none of the passengers sitting down were hurt, but two among others who were standing were also knocked down by the jar. As to the character of the stop plaintiff testified:

"Q. Are you familiar with the way freight trains start and stop? A. Yes, sir; I think so. I take rides on them good deal at that time. Q. How was this? A. It was harder."

¶3 Another witness, a passenger, said:

"It stopped very suddenly. It was a very hard jar. It was much harder than ordinary. It came very near shoving me out of my seat."

¶4 And finally stated:

"A. Well, the train stopped very suddenly as I told you. The jerk was harder than ordinary. I have felt as hard jerks on a freight train I have ridden on, but this was something very uncommon. The jerk was very hard."

¶5 On cross-examination he said:

"Q. And you say you have observed other jars on freight trains that were just as sudden as this? A. O, yes. Q. The train in pulling up from one stop to the other didn't reach a speed of over three or four miles an hour at any point? A. No; I think not. Of course, it didn't go very fast. Q. Just pulling about its length? A. Yes, sir. Q. The jar from the stop was just about such a jar as usually resulted when the slack runs out of any train? A. No; I don't say that. I said it was something uncommon. I have felt such a jar, but it was an uncommon thing."

¶6 Another passenger said:

"It seemed unusually hard. It was more severe. It was a little extraordinary, I think."

¶7 A passenger seated in the cupola of the caboose said:

"The jar that caused this party to fall was not an unusually severe hard one. Nothing more than usually occurs on freight trains."

¶8 This is substantially all the evidence on this point.

¶9 Was there sufficient evidence of negligence to take the case to the jury? We think not. It is well settled, as said by the court in Wait v. Omaha, K. C. & E. Ry. Co., 165 Mo. 612, 65 S.W. 1028, that, where a railroad company carries passengers for hire on its freight trains, "it must exercise the same degree of care as is required in the operation of its regular passenger trains; the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance. Whitehead v. St. Louis, I. M. & S. Ry. Co., 99 Mo. 263, 11 S.W. 751, 6 L. R. A. 409; McGee v. Mo. P. Ry. Co., 92 Mo. 208, 4 S.W. 739, 1 Am. St. Rep. 706; Wagner v. Mo. P. Ry. Co., 97 Mo. 512, 10 S.W. 486, 3 L. R. A. 156; Hays v. Wabash Ry. Co., 51 Mo. App. 438; Guffey v. Han. & St. J. Ry. Co., 53 Mo. App. 462; Ohio & Miss. Ry. Co. v. Dickerson, 59 Ind. 317; Chicago & Alton Ry. Co. v. Arnol, 144 Ill. 261, 33 N.E. 204, 19 L. R. A. 313; Olds v. New York, etc., Ry. Co., 172 Mass. 73, 51 N.E. 450."

¶10 And, as stated in Chicago & Alton Ry. Co. v. Arnold, 144 Ill. 261, 33 N.E. 204, 19 L. R. A. 313:

"Persons taking passage upon freight trains, or in a caboose or car attached to a freight train, cannot expect or require the conveniences or all of the safeguards against danger that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodations provided by the company, subject to all the ordinary inconveniences, delays, and hazards incident to such trains when made up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill? * * * But, if a railway company consents to carry passengers for hire by such trains, the general rule of responsibility for their safe carriage is not otherwise relaxed. From the composition of such a train and the appliances necessarily used in its efficient operation there cannot in the nature of things be the same immunity from peril in traveling by freight train as there is by passenger trains, but the same degree of care can be exercised in the operation of each. The result in respect of the safety of the passenger may be wholly different because of the inherent hazards incident to the operation of one train, and not to the other, and it is this hazard the passenger assumes in taking a freight train, and not hazard or peril arising from negligence or want of proper care of those in charge of it."

¶11 Applying these principles to the case in hand, what right have we in the light of evidence to attribute the injuries sustained by plaintiff to the negligence of the defendant rather than to the dangers necessarily attending the mode of conveyance adopted and which were assumed by plaintiff on taking passage. None whatever. There is nothing in the evidence which tends to prove other than the mere fact that the injury resulted from a jar caused by the taking up of the slack in the train on the stopping of the engine. It is contended by defendant that proof of the mere factum of the jar is not sufficient to send the question of negligence to the jury. In this we concur. In order to show negligence, it is not sufficient to prove the mere fact...