Swift v. St. Louis-San Francisco Ry. Co.

• Decision Date: 01 April 1929
• Docket Number: No. 16482.,16482.
• Parties: SWIFT v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

15 S.W.2d 964

SWIFT v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 16482.

Kansas City Court of Appeals. Missouri.

April 1, 1929.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Francis C. Swift against the St. Louis-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

Jos. F. Keirnan and Cowgill & Popham, all of Kansas City, for respondent.

BARNETT, C.

This is an action for damages for personal injuries. The evidence most favorable to plaintiff is to the effect that plaintiff was a trespasser riding on one of defendant's freight trains. When the train reached Kansas City, the plaintiff made preparations to leave the train before it pulled into the station. The fireman saw him upon the tender, shouted, "Get off of there," then threw a lump of coal which hit the plaintiff in the eye. This knocked plaintiff off of the moving train, and the wheels passed over the toes of one of his feet, so that the toes and part of his foot had to be amputated. As it is claimed that the petition did not state a cause of action, we set out the petition in full, except the caption, the signatures, and the prayer. It is as follows:

"Comes now the plaintiff and for his cause of action against the defendant states: that defendant is a corporation, duly organized and exisiting according to law and owning, opperating and conducting a line of steam railroads in the States of Missouri and Tennessee.

"That on the 8th day of February, 1923, the plaintiff herein boarded an express refrigerator car of the defendant in Memphis, Tennessee, said refrigerator being attached to and a part of a train belonging to defendant and running over defendant's line of railroad between Memphis, Tennessee, and Kansas City, Missouri, and that said refrigerator car was placed next to the tender and engine on said train.

"That the plaintiff remained in said refrigerator car attached to said train until said train was nearing Kansas City, Missouri; that as said train passed Rosedale, Kansas, plaintiff left said car and took up a position on the tender of the engine of said train preparatory to leaving same when said train would slacken its speed.

"That the fireman of said train and at that time a servant and employé of said defendant and in charge of said engine and tender, threw lumps of coal at this plaintiff which caused this plaintiff to cross over to the other side of said tender. That this plaintiff had reached the right side of said tender and was in the act of getting down the step ladder attached to said tender when the fireman, who by this time had taken a position atop the tender, all the while throwing lumps of coal at this plaintiff, threw a lump of coal at plaintiff which struck plaintiff in the eye and knocked plaintiff from said tender and caused plaintiff to fall under said train which during all this time was running at a high rate of speed and not safe for plaintiff to get off said train.

"Plaintiff states that said assault on him by defendant's agents and servants was unlawful and wholly without provocation on his part.

"Plaintiff further states that when he was knocked from said tender by defendant's agent and servant, he fell under said rapidly moving train and the wheel of said train passed over the left foot of this plaintiff and plaintiff thus and thereby and then and there received the following painful, permanent and dangerous injuries, to-wit:

"Plaintiff's left foot was crushed and the lower part thereof amputated at a point above the middle of said foot, the flesh, muscles, nerves and ligaments of said foot and leg were lacerated, torn and wrenched. Plaintiff's legs, pelvic organ and spine were bruised, jarred and wrenched and plaintiff suffered a severe and violent shock and injury to his nervous system. As a result plaintiff has suffered ever since said accident with severe and violent nervous attacks and with a run-down and depleted nervous condition.

"That on account of said injuries plaintiff has been unable to sleep at night and has lost his usual rest and repose; that he has been unable to follow his regular occupation as a taxi-cab driver and that he is unable to drive a car.

"Plaintiff further says that as a result of said injuries he will be compelled to carry a support in order to walk; that he has in the past suffered and will in the future suffer great physical pain and mental anguish and that he has in the past necessarily laid out, expended and become indebted for and will in the future necessarily lay out, expend and become indebted for large sums of money for hospital bills, doctors, nurses and medicines."

The defendant's witnesses denied that any assault was made, but the fireman testified that he had authority to eject trespassers from the train. On direct examination, plaintiff testified that Mr. Pollard, defendant's claim agent, came to see him while he was in the hospital; that at that time the doctors were taking him up to the examining room where one of the doctors would lecture upon the condition of his foot in the presence of some student doctors, explaining how the foot should be amputated, how the bones were supposed to be sawed, and like matters. After plaintiff had been in the examining room a little over an hour, he came down stairs, and Mr. Pollard took a statement of "just how the accident happened." He then testified as follows:

"Q. Was that in writing? A. Yes, sir.

"Q. Did you sign it? A. Yes, sir.

"Q. You may state whether or not you gave him the same facts that you have here? A. Yes, sir.

"Q. Have you ever seen that statement since? A. No, sir.

"Q. As far as you know they have it? A. Yes, sir."

On cross-examination, plaintiff testified that he told Mr. Pollard all about the accident, and that Mr. Pollard wrote it down, and plaintiff read it, and, after he read it over carefully, he signed it. He then testified as follows:

"Q. And the statement which you gave him and the facts which were written in there and which you read and which you signed are the correct facts, were they? A. Well, I don't know just exactly, for I was awful nervous that day and I read over it, but couldn't tell you right now just what—

"Q. Yes, you told the jury, in answer to a question of your lawyer, that you went over and told him the facts just as they were? A. Yes, sir.

"Q. He wrote them down. A. Yes, sir.

"Q. And you tell the jury now you read it and signed it, that is right? A. Yes, sir.

"Q. And of course you were trying to tell the truth about it? A. Why, certainly.

"Q. Now of course you know your signature, here is an instrument made up of two pages, I believe. I ask the reporter, if he will, to mark that Defendant's Exhibit 1 and indicate it on both pages? (The instrument was here marked as an exhibit.)

"Q. Of course you know your signature and you signed it on both pages so there could not be any change of the pages—don't look at that—is that your signature on that page? A. Yes, sir.

"Q. And that is your signature? A. Yes, sir.

"Q. And I see you say here, just as you told the jury, `I have read the foregoing statement and it is true.' Is that right? A. Yes.

"Q. That is the truth, that is your signature there? A. Yes."

The statement was then offered in evidence by defendant's attorney. It recited that plaintiff had ridden from Memphis, Tenn.; that he had paid no fare and had no permission to ride the train; that no one caused him to get off the train; that he was getting off voluntarily because he did not want to ride into the station; that the fireman gave him a "dirty look" as if he had a mind to throw a lump of coal at him just before he fell off. At the bottom of the statement and just above the plaintiff's signature was this sentence: "I have read the foregoing statement and it is true."

The attorney then read the statement aloud in the presence of the plaintiff, and the examination then proceeded as follows:

"Q. Now you didn't say a word in there about anybody throwing coal at you, did you? A. Well, just like I told you, I says I came down from the operating room and they had been in the habit of lecturing on my foot, and he wrote that out to suit himself.

"Q. You told the jury, though, that you had not read it? A. I read it over.

"Q. Read it over and it was the truth. You heard your lawyer in his opening statement say that you gave a statement and it told the truth, you heard that too, didn't you? A. Yes, sir.

"Q. And now you cannot find in this statement a single word that the fireman threw any coal at you, can you (handing statement to witness)? A. I cannot in here.

"Q. Not a thing, and after you had read it over you tell the jury that you took your pen yourself and wrote in your handwriting: `I have read the foregoing statement and it is true.' That is right, isn't it? A. Yes.

"Q. It is true that after you read it, took the pen in your own hand and wrote the words `I have read the foregoing statement and it is true.' A. Yes, I signed that, yes.

"Q. You were telling the story just as you understood it, weren't you? A. The way Mr. Pollard wrote it.

"Q. Yes, that is the way you understood it? A. Yes."

On redirect examination, plaintiff testified that Mr. Pollard rattled off a bunch of words and says: "`That is the way you got hurt ain't it?' and I was nervous and everything, and I say `Yes, I guess so,' and he worded it to suit himself, he made that statement up."

He testified that he read the statement, but was so nervous that he couldn't say just what was in it; that he believed, until defendant's attorney read the statement that it had in it about the fireman hitting him with a lump of coal, and that he had so advised his attorney; that he never told Mr. Pollard that he fell off the train.

There was a judgment for plaintiff, and defendant has appealed.

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