Todd v. Missouri Pac. Ry. Co.

• Decision Date: 04 November 1907
• Citation: 105 S.W. 671,126 Mo. App. 684
• Parties: TODD v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

105 S.W. 671

126 Mo. A. 684

TODD v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

November 4, 1907.

Rehearing Denied December 2, 1907.

1. CARRIERS—INJURY TO PASSENGERS—NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a passenger by the sudden stopping of the train by the conductor in order to obviate the effect of the engineer's failure to obey an order to stop, evidence held to require submission of question of defendant's negligence to the jury.

2. SAME—NEGLIGENCE IN STOPPING TRAIN.

Where the engineer of a passenger train failed to obey an order to stop at a station where plaintiff, a passenger on the train, alleged it was to meet and pass a train going in the opposite direction, whereupon the conductor suddenly and violently stopped the train by the application of the air from the rear, throwing plaintiff against one of the seats and injuring her, defendant, though chargeable with negligence in passing the station, in violation of the order, causing the necessity for the sudden and violent stoppage in order to prevent collision, was not negligent in making the stop for that purpose.

3. NEGLIGENCE—RES IPSA LOQUITUR.

Where a thing is shown to be under the management of the defendant or its servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident was the result of negligence.

4. CARRIERS — INJURY TO PASSENGER — PRESUMPTION OF NEGLIGENCE—RES IPSA LOQUITUR.

Where a passenger on defendant's train was thrown against one of the seats and injured by a sudden stoppage of the train, such evidence, in the absence of explanation by defendant, was prima facie to be attributed to defendant's negligence, under the doctrine res ipsa loquitur.

5. SAME — PLEADING — SPECIFIC GROUNDS OF NEGLIGENCE.

Where, in an action for injuries to a passenger, plaintiff relied solely for a recovery on defendant's alleged negligence in suddenly stopping a train with unusual violence, which was not negligent, but properly done to avoid a collision, plaintiff could not recover for other or different causes of negligence, or on the theory of res ipsa loquitur.

Appeal from Circuit Court, Henry County; C. A. Denton, Judge.

Action by Myra L. Todd against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

R. T. Railey, for appellant. O. L. Houts, M. D. Aber, and Peyton A. Parks, for respondent.

BROADDUS, P. J.

The plaintiff was a passenger on one of defendant's trains. She claims that she was injured while she was a passenger on one of the cars of said train, and recovered judgment from which the defendant appealed.

The cause of action is predicated upon the charge of negligence as set forth in the following statement of her petition: "Plaintiff states that on the 1st day of June, 1902, and while this plaintiff was a passenger for hire on one of defendant's east-bound trains conducted and operated by defendant, and bound for Holden, Mo., at a point just east of Strasburg, defendant, its agents, servants, and employés, negligently and carelessly caused and permitted the train this plaintiff was riding upon and one of its trains coming from the opposite direction to approach each other in close proximity on the same track, and by reason thereof, to avoid a collision, defendant, its agents, servants, and employés, negligently and carelessly caused the said train to jerk plaintiff violently to and against one of the chairs or seats of said car, and severely and permanently injured her," etc. It appears from the evidence of plaintiff that she and her son, about eight years old, were among many other excursionists on the car, and that her son sat next to the window of the car, while she sat, in the same seat, next to the aisle, and that said train had orders to await at said station for a freight train coming from the opposite direction. The train, instead of stopping at the station, passed by, and at a short distance beyond came in sight of the approaching freight, running around a curve from the opposite direction on the same track. There were several blasts of the whistle on the engine pulling the excursion train of such an extraordinary character as to attract the attention of some of the passengers, which caused them to stand up, and numbers of them to look out of the windows to ascertain the cause of the alarm. The plaintiff stood partially up, leaned across her son, and looked out of the window. Just then the train came to a sudden stop, which had the effect of pitching or throwing her onto the back of the seat in front, and then back into her own. She was rendered unconscious, and was severely injured. The excursion train backed to Strasburg, went onto a side track, and awaited the freight train, which shortly came on and passed. On the other side, the conductor testified that there was no freight train...