Tickell v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 14 June 1910
• Citation: 149 Mo. App. 648,129 S.W. 727
• Court: Missouri Court of Appeals
• Parties: TICKELL v. ST. LOUIS, I. M. & S. RY. CO.

129 S.W. 727

149 Mo. App. 648

TICKELL v. ST. LOUIS, I. M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

1. CARRIERS (§ 280)—PASSENGERS—FREIGHT TRAINS—CARE REQUIRED—ASSUMED RISK.

While a carrier of passengers on freight trains is bound to exercise the same degree of care for their protection as when conveyed on passenger trains, a passenger who elects to travel on a freight train assumes all the risks which usually attend the ordinary jerks and inconveniences incident to such mode of conveyance.

2. CARRIERS (§ 316)—INJURIES TO PASSENGERS —FREIGHT TRAINS—RES IPSA LOQUITUR.

Where a passenger on a freight train was injured as the result of a sudden jerk, the doctrine of res ipsa loquitur does not obtain so as

to require the carrier to acquit itself of negligence in the absence of proof that the jerk was extraordinary and unusual.

3. CARRIERS (§ 331)—INJURIES TO PASSENGER— CONTRIBUTORY NEGLIGENCE.

Where the caboose of a freight train carrying passengers was so full when plaintiff boarded it that plaintiff could not get a seat, he was not negligent merely because he stood in the aisle.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Action by L. A. Tickell against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. F. Green, for appellant. Traylor & Baker, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant in operating its train. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant is a public carrier of passengers, and at the time of his injury plaintiff was a passenger on a freight train on which it carried passengers. A considerable number of persons boarded defendant's local freight train, and were assembled in its caboose at Sikeston for the purpose of being conveyed to their homes in Morehouse, about six miles distant. The party had attended a funeral at Sikeston during the day, and hence the large number. Because of their number, all of the seats in defendant's caboose were occupied, and plaintiff, together with several other men and some three or four young ladies, was standing in the aisle of the car at the time of the mishap which gives rise to the pending suit. The negligence relied upon in the petition for a recovery is to the effect that defendant so carelessly and negligently operated its train as to suddenly stop it in such an extraordinary and violent manner as to cause an extraordinary jerk and jar which precipitated plaintiff to his injury. The proof shows plaintiff was standing about four feet inside of the door of the caboose at the forward end of that car. The train was yet moving in defendant's yards at the town of Sikeston as though some switching or yard work was being done. A sudden stoppage of the train occurred by means of the application of the air brakes, which now generally obtain throughout the country on freight trains, and plaintiff was precipitated backward through the door at the end of the caboose and against the iron railing inclosing the platform of that car. He received a slight wound on his head, but no permanent injury, and the jury awarded him a verdict of $130 for the hurt. Of course, in the circumstances of the case, the mere fact that plaintiff was standing in the car should not be considered at all sufficient to charge him with negligence as a matter of law, for it appears that because of the number of passengers no seat whatever was available to him, but from a reading of the entire record it is obvious the evidence fails to disclose a negligent breach of duty on the part of defendant for which it is liable to respond. The law is well settled to the effect that, if a railroad company sees fit to carry passengers on its freight trains, it thereby assumes the duty to exercise high care for their protection identically as it does when the passengers are conveyed on its regular passenger trains, but, while this is true, the rule obtains as well that one who submits to be carried on such trains assumes all of the risks which usually attend the ordinary jerks and jars and inconveniences incident to such a mode of conveyance. Mitchell v. C. & A. R. Co., 132 Mo. App. 143, 112 S. W. 291; Hedrick v. Mo. Pac. R. Co., 195 Mo. 104, 93 S. W. 268; Wait v. O., K. C. & E. R. Co., 165 Mo. 612, 65 S. W. 1028. There is not a word in the evidence before us indicating that there was any defect in the railroad track, equipment, or appliances connected with the train or road. Indeed, the only theory for a recovery put forward is that defendant was negligent in suffering the sudden jerk of the train which occasioned plaintiff's injury. It is said this of itself indicates negligence somewhere about the management of the conveyance for which defendant is liable to respond, and that upon showing so much it devolved upon defendant to acquit itself. Defendant introduced no evidence whatever.

At the conclusion of plaintiff's case, it requested the court to direct a verdict for it on the theory that the showing of fact was insufficient to send the case to the jury, for the reason the jerk or jar of the train was not shown to have been more than an ordinary occurrence incident and usual to the operation of such trains. It is entirely clear that no presumption of negligence sufficient to devolve the duty of acquitting itself on defendant may arise unless the facts disclose such an extraordinary jerk or jar as would not happen if those having the management of the train had exercised high care in the circumstances of the case. So, before the doctrine of res ipsa loquitur may be invoked in aid of the verdict, something more than an...