St. Louis & S.F. Ry. Co. v. Gosnell
Decision Date | 12 May 1909 |
Citation | 101 P. 1126,23 Okla. 588,1909 OK 130 |
Parties | ST. LOUIS & S. F. RY. CO. v. GOSNELL. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
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.
[Ed Note.-For other cases, see Carriers, Cent. Dig. § 1098; Dec Dig. § 280. [*] ]
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.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1192; Dec. Dig. § 298. [*] ]
Error from District Court, Comanche County; F. E. Gillett, 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.
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 willfully 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.
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 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: Another witness, a passenger, said: And finally stated: On cross-examination he said: Another passenger said: A passenger seated in the cupola of the caboose said: This is substantially all the evidence on this point.
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, And, as stated in Chicago & Alton Ry. Co. v. Arnol, 144 Ill. 261, 33 N.E. 204, 19 L. R. A. 313: 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 that plaintiff was injured by a jerk in the movement of the train or by a jar occasioned by its stopping. Such is not negligence per se or sufficient to justify its inference. In...
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