Thompson v. St. Louis Southwestern Ry. Co.

• Decision Date: 29 February 1916
• Docket Number: No. 17985.,17985.
• Parties: THOMPSON v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Supreme Court

183 S.W. 631

THOMPSON v. ST. LOUIS SOUTHWESTERN RY. CO.

No. 17985.

Supreme Court of Missouri. Division No. 1.

February 29, 1916.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

Action by Leander Thompson against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

See, also, 243 Mo. 336, 148 S. W. 484.

This is an action for personal injuries received by plaintiff at Paragould, Ark., December 20, 1906. The petition charges that on the above date, while plaintiff was at the Union Station of appellant and the St. Louis Iron Mountain & Southern Railway in said city of Paragould, walking at the side of defendant's track, he was struck by the door of one of defendant's freight cars in a passing train; that the door had been negligently permitted by the defendant to project and swing a considerable distance outward from the side of the car, so that it struck him and pulled him along with the moving car for several yards, and violently threw him into and against a mass of iron and track rails, negligently and wrongfully left by defendant where the public were accustomed to travel and to get off the cars at the station, thereby throwing him to the ground and under the moving train which ran over his right arm crushing and mangling it so that it had to be amputated at the shoulder, etc. Judgment was asked for $15,000. The answer is a general denial, coupled with a plea of contributory negligence. The case was formerly in this court on defendant's appeal. 243 Mo. 336, 148 S. W. 484. The station building at Paragould is about 156 feet long and 30 feet wide. The length of the building extends from northeast to southwest, and is located in the space between defendant's tracks and those of the St. Louis Iron Mountain & Southern Railway, north of where said railroads intersect each other south of Garland street in said city. The space between said railroads and south of said station was paved with crushed stone; was kept smooth, in good condition, and constituted the only platform of the station. The evidence tends to show that there was a well-worn path along the west side of defendant's tracks upon said pavement, and entered Garland avenue on a wooden walk built across the ditch.

It does not appear from the record that any one witnessed the accident except the plaintiff himself, and his younger brother, Orville Thompson, about 27 years of age. These two brothers left the plaintiff's store northwest of said depot between 9 and half past 9 o'clock in the evening of December 20, 1906, for the purpose of getting an express package of whisky, and with the alleged intention of going to their father's home east of said station. About this time, a freight train of defendant, called "Second Fifteen," stood immediately north of Main street, and northeast of said depot on a side track, to permit the north-bound passenger train to pass. Second Fifteen pulled out for the south, with about 45 loaded cars, at about 10:35 p. m. Plaintiff and his brother Orville claim that it was necessary for them to pass southeast around some trucks which had been left near the end of said depot, in order to reach the west door of the express office, from which they expected to obtain the whisky. In going around these trucks, it brought them close to the moving freight train. Plaintiff was walking next to the railroad train, with his brother Orville on his right. While traveling in this manner, before they turned away from the train, plaintiff claims that while in the clear of the train, he was struck from the rear and became unconscious, until he woke up and found his arm off. He said he did not hop on the train. He had a suit of clothes and an overcoat on that night when injured. He does not know what struck him. His overcoat was cut where his arm was run over; the vest was torn around about the waistband and left hip pocket.

On cross-examination, plaintiff said he had two drinks before he was hurt, but no more. He thought the trucks they were trying to avoid were six, seven, or eight feet from defendant's rail; that he was about 1½ to 2 feet from the car when he was struck. He said he was hit while at the southeast corner of the depot; had no recollection of having said to any one that night, "This is what booze does for a fellow," and had no recollection of saying if he was not so drunk, he could straighten his arm out.

Orville Thompson, who was with plaintiff at the time he was injured, testified in chief as follows:

"Q. Tell the jury, as best you can, how this accident happened. A. Well, when we started to go around those trucks, between the railroad and the trucks, this freight train was pulling south on the Cotton Belt, and my brother was walking on my left side, and just as we passed through — just as we were turning, had not turned yet, but ready to turn — he was struck by a swinging door from a box car, and it caught in his clothes and threw him against me and knocked me to one side, and as soon as I recovered I grabbed hold and tried to pull him loose, but he seemed to be fastened some way, and I held to him until we got down the track and run into a bunch of scrap iron I call it, and that threw me loose from him, and threw him from the car and back under it and me the other way. As soon as I could get back I pulled him away from the train, and went back to the express office and asked for help. Q. Now, tell the jury where your brother Leander was with reference to this path that runs down along the railroad and between the railroad and the station building there? A. Well, it was right along in that path, say right in it. Q. Tell the jury whether or not he was in the clear of the moving train at the time he was struck. A. Yes, sir; he was if there had not been anything there. Q. When did you first notice that it was a swinging door that had struck your brother? A. When I turned around and got hold of him and tried to pull him out, the door pulled him out with it; that is about the time. Q. How long did you try to pull him or keep hold of him and try to get him out? A. I don't know how long it was, but until we run into this pile of iron."

He said plaintiff did not fall to the ground at any time before he reached the pile of iron described in plat. Before the accident occurred, witness said he never saw any swinging door of the freight car. He describes the accident as follows:

"Q. You were right at the end of the trucks? A. Yes, sir. Q. And then something struck your brother? A. Yes, sir. Q. That is what you tell this jury, is it? A. Yes, sir. Q. Right at that point? A. Yes sir."

He further testified that they passed by the trucks, and as they were ready to turn back to the west door of the express office, his brother was hit and thrown against him. He further testified:

"Q. Right at the southeast corner of the depot? A. Yes, close there to it. * * * Q. Well, what happened when your brother was struck? A. When he was struck, he hit me along on the shoulder and kinda shoved me to the side, and when I turned around I saw him go back with this door to the car and hang, and I grabbed hold of him. Q. Where did you grab him? A. I don't know, on the body somewhere, around the arm or waist. I don't know just where. Q. You don't know where you caught him? A. No, sir."

Said witness further testified:

"Q. It was light there, was it not? A. Yes; it was tolerable light. Q. You say that he was held by a swinging door? A. Yes, sir. Q. Where did it seem to have him? A. Seemed like somewhere around the waist, I could not tell just where it did have him. Q. Couldn't you pull him loose? A. No, sir; I could not. Q. What was your brother doing? A. Just dragging along. Q. What part of him was dragging? A. Why his feet. He was not really dragging, he was kinda stumbling along. * * * Q. In fact you know your brother was not struck there at the southeast corner, don't you, Orville? A. No, sir; I don't, I know that he was."

He further testified:

"Q. Was it light enough down there that you could see him? A. I don't know just how the lights were that night."

This witness, on cross-examination, further testified:

"Q. How did you see the door when you were knocked aside yourself? A. I saw the door as I run along trying to pull him loose from this door. Q. Did you see what hit him? A. No, sir; I could not tell. Q. You could not tell how he was fastened? A. No, sir. Q. Could you tell what kind of a car it was? A. No, sir. Q. Could you tell how that door was loose? A. Well, I could tell it was swinging by the corner, on this lower corner torn down and swinging out at the bottom. Q. That train was running very slow, was it not? A. Not so fast. Q. It was not running over five or six miles an hour, was it? A. I could not say. Q. You had no trouble, your brother staggering along there, you had no trouble to keep up? A. I kept up and tried to pull him loose. Q. You had lots of time to see it was a swinging door? A. It was easy to see because when I tried to pull him, the door pulled out with him. Q. You saw the door swinging out, did you? A. Yes, sir. Q. Was your brother on the inside or outside? A. He was fastened to the door, when I pulled him that would pull the door. Q. Was he inside or outside of that door? A. How do you mean it? Q. Was he fastened inside or outside? A. I say I don't know. Q. You say he was fastened in the back? A. I judge he was from the appearance after that, his clothes, but I could not tell then, and don't know now how he was fastened. Q. It was an ordinary box car door, was it not? A. I don't know. Q. Tell the jury whether there was two doors or one? A. I know he was swinging by this door; what do you mean? Q. Was it a double door or one of these big sliding doors? A. One of these sliding doors. Q. You are sure of that? A. Yes sir. Q. And you are sure it was hanging by one corner? A. Yes, sir. Q. And you are sure it had your brother in the back? A. No, sir. ...