Stephens v. Mobile & O.R. Co.

• Decision Date: 15 June 1926
• Docket Number: No. 19397.,19397.
• Citation: 285 S.W. 151
• Court: Missouri Court of Appeals
• Parties: STEPHENS v. MOBILE & D. R. CO.

285 S.W. 151

STEPHENS v. MOBILE & D. R. CO.

No. 19397.

St. Louis Court of Appeals. Missouri.

June 15, 1926.

Rehearing Denied June 24, 1926.

Appeal from St. Louis Circuit Court; Wm. Killoren, Judge.

"Not to be officially published."

Action by Mary Lou Stephens against the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Carl Fox and R. P. & C. B. Williams, all of St. Louis, for appellant.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.

DACES, P. J.

This is an action for damages for personal injuries. Plaintiff obtained a verdict and judgment for $3,000, and defendant appeals.

The pertinent allegations of the petition are that defendant, on February 21, 1923, stopped its train at its station at South Columbus Ky., for the reception of passengers; that plaintiff, having purchased a ticket, was waiting there to take the train; that, while the train was stopped for the reception of passengers, plaintiff attempted to board the train as a passenger, and, while so doing, "and while on the step of said coach of said railroad train, said train, before plaintiff had reasonable time to board said coach, and while still in the act of boarding said coach of said train, violently and without notice or warning to plaintiff, in an extraordinary, unusual, and unexpected manner, jarred, jerked, jolted, and moved as a direct and proximate result of negligence and carelessness of the defendant, its agents and servants, causing plaintiff to be suddenly, forcibly and violently thrown about, on, and in said car," and to be injured.

The answer is a general denial and a plea of contributory negligence.

The reply is a general denial.

Plaintiff's evidence consisted of her own testimony, that of her sister, Mrs. Gertrude Hollingsworth, and one Calvin French, and her physicians. Plaintiff testified that on the night of the accident she went to the station and purchased a ticket for the purpose of returning to her home in East St. Louis, Ill. There was no train platform, but there was a cinder walk where one could take board on the train. The train came to a stop, and a trainman got off and put a stool on the ground for her to step upon. He helped her on the steps, and, while she was in the act of making the last step onto the platform of the coach, the train started, throwing her on her right side against the train, and she said it knocked her almost senseless, that she tried to get up and that a trainman came and picked her up. In describing how the car moved, she said she got up to the last step and was in the act of stepping on the platform "when the train gave a quick jerk and threw me on my right side."

Mrs. Hollingsworth testified that she was present when plaintiff got on the train. Reciting the facts similarly to that given by plaintiff, this witness also said that, as plaintiff was getting on the train, the train gave a quick jerk and threw plaintiff on her face.

Calvin French, a witness for plaintiff, a farmer living in the neighborhood, said he saw the train stop, and saw a trainman set down a stool, that the train was then standing still, and that plaintiff then attempted to board the train, and that as she got on the next to the last step the train gave a jerk and threw her down.

The testimony of the medical experts we will recite later.

Defendant produced a passenger on the train as a witness, who testified that plaintiff fell in the aisle of the coach and that she discovered no rough movement of the train when it started. This witness admitted that she rode on passes, and that her husband was then an employee of the railroad. Defendant's conductor testified that there was no unusual jerk or lurch of the train in starting at the time alleged; that after the train had started he noticed plaintiff sitting on the floor in the aisle of the coach, and that the flagman lifted her up; that plaintiff said she did not think she was hurt.

Other witnesses testified that there was no unusual jerk or lurch of the train on this occasion, and that plaintiff fell in the aisle of the coach after she had entered same. This is a sufficient recital of the facts at present.

The first assignment of error strikes at plaintiff's instruction No. 1. It is said that this instruction submits the case to the jury simply upon the premature starting of the train, and that the petition proceeds upon the theory of an extraordinary and unusual jerk in starting the train. The instruction lays the elements as to plaintiff's purchasing a ticket and the train stopping at the usual place for passengers; then the instruction proceeds:

"And while the train was so stopped to receive passengers, and then proceeded and attempted to board the train in the usual and customary manner and with reasonable diligence on her part, and that, while she was doing so, if you so find, but before she had a reasonable time and opportunity, if acting with reasonable diligence on her part, to safely board the train, if you so find, the train was, by the operatives in charge thereon, started in motion in such manner as to cause the plaintiff to lose her balance and to be thrown or fall and strike against some part of the coach which she was boarding, and that she thereby and in such manner received bodily injury. * * *"

From so much of the petition as we have set out, it will be seen that the gravamen of the petition is the complaint that the defendant negligently started up its train "before plaintiff had a reasonable time to safely board said coach and while still in the act of boarding said train." The petition further alleges that defendant in starting the train did so violently and without notice or warning to plaintiff, and that it did so in an extraordinary and unexpected manner. We think the words which are descriptive of the manner in which the train was started are not the vital or necessary constituents of the cause of action pleaded. If that be true, then plaintiff was not required to prove the manner in which the train started prematurely. The gravamen of the charge was that the train prematurely started without warning to plaintiff before she had boarded the train, and thus injured her. We would have little difficulty in reaching this view were it not for the case of Simms v. Dunham (Mo. App.) 203 S. W. 652, which we will discuss later.

In Nelson v. Railroad, 113 Mo. App. 702, 88 S. W. ma, the petition charged that while plaintiff was in the act of stepping from the platform of the car and before she had time to safely alight, the defendant carelessly started the car forward "with a sudden jerk and at a rapid rate of speed, causing plaintiff to fall and be injured." The petition further alleged that the injuries were caused by the negligence of the defendant in starting the car forward "with a sudden jerk" while plaintiff was in the act of alighting, etc. In deciding what was the cause of action pleaded in that case, the court said that a reasonable construction of the petition leads to the view that the negligence charged was the starting of the car with sufficient force to destroy plaintiff's equilibrium while she was leaving the car, and "that the manner of starting the car, its rate of speed, and the jerking motion are but nonessential particulars."

In Kirby v. Railroad, 146 Mo. App. 304, 130 S. W. 69, this same principle is discussed, the petition being very much like the one now before us. Proof was made that there was a failure to hold the train a sufficient length of time to permit plaintiff to alight therefrom. Plaintiff failed to make proof that the train started forward "with a violent and sudden jerk, lurch, and bound," etc. which words were in the petition. To this the Springfield Court of Appeals said:

"The other allegations of the petition, charging that the train was caused to move forward with a violent and sudden jerk, lurch, and bound were unnecessary allegations, and we can see no reason why plaintiff, by reason of having made these allegations when they were entirely unnecessary, should be required to prove them before making a case sufficient to go to the jury, when to prove the other allegation was of itself sufficient. Nelson v. Railroad, 113 Mo. App. 702, 88 S. W. 781 [1119]; Green v. Railroad, 122 Mo. App. 647, 99 S. W. 28. The demurrer to the testimony was properly refused."

In Thomure v. Railroad, 191 Mo. App. 640, 177 S. W. 708, this court had occasion to discuss the application of the rule applied in the instant instruction. The petition there charged that the train was caused to be started forward while the plaintiff was in the act of alighting therefrom, and the petition there stated that the train was caused to be started forward "with a sudden jerk and bound, without the knowledge of the plaintiff," thereby causing her injuries. The petition alleged further that the injuries were caused by the carelessness of the defendant "in causing the train to move suddenly forward," etc. It was conceded in that case that there was no direct proof as to whether the train started slowly or whether it jerked; it being argued there, as here, that, since the...