Estes v. Missouri Pac. Ry. Co.

• Decision Date: 27 February 1905
• Citation: 110 Mo. App. 725,85 S.W. 627
• Parties: ESTES v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

85 S.W. 627

110 Mo. App. 725

ESTES v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

February 27, 1905.

CARRIERS OF PASSENGERS — PERSONAL INJURIES — COLLISION — PRESUMPTION OF NEGLIGENCE — PLEADING — EVIDENCE — SEVERITY OF COLLISION — EXTENT OF INJURIES — INDIRECT DAMAGES.

1. In an action against a railroad company by a passenger for injuries in a collision, allegations that, through the negligence of defendant's agents, and in disregard of plaintiff's rights and safety and defendant's duty to plaintiff, the trains were permitted to collide, etc., were sufficiently definite, without a more precise specification as to the acts of negligence of which defendant was guilty.

2. Where a passenger is injured in a collision, it is presumed that the carrier was negligent.

3. In an action by a passenger for injuries in a collision, a statement on plaintiff's ticket that it was issued by a certain person, "excursion agent, Kansas City," did not justify an inference that the excursion agent was in charge of the train upon which plaintiff was a passenger, but, on the contrary, indicated that the ticket

was sold by a person who was defendant's agent for the sale of excursion tickets.

4. In an action by a passenger for injuries sustained in a collision, in which defendant denied that plaintiff was injured, evidence as to the number of persons killed in the collision was admissible to show its severity.

5. In an action for personal injuries, evidence that plaintiff complained of suffering is admissible.

6. In an action for personal injuries, the question whether plaintiff was simulating the pain to which she testified at trial is for the jury, and not the appellate court.

7. Plaintiff was a passenger on a train which became disabled between stations, and while in this condition was run into by another train, injuring many persons. Some one stated in plaintiff's hearing that another train was approaching from the rear, and there was about to be another collision, whereupon plaintiff left her car and went to the side of the track, where she was poisoned by poison ivy. Held, that plaintiff was entitled to recover from the railroad for the injury resulting from the poisoning.

Appeal from Circuit Court, Morgan County; James E. Hazell, Judge.

Action by Ada M. Estes against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. L. Clardy and Wm. S. Shirk, for appellant. C. C. Lawson, Jno. D. Bohling, and Wm. Forman, for respondent.

BROADDUS, P. J.

The plaintiff sues to recover damages, the result of injuries alleged to have been caused by the negligence of defendant's employés. The petition alleges that on the morning of July 12, 1903, the defendant, as a common carrier of passengers, undertook, for hire, to transport plaintiff from Kansas City to Sedalia and return; that the train upon which she was a passenger, when it reached a point between Little Blue and Lee's Summit Stations, on defendant's railroad, stopped because the engine drawing said train became disabled; that about said time another of defendant's trains, known as the "Fast Mail," running from St. Louis to Kansas City, was due at the place where said train upon which plaintiff was a passenger had so stopped; "that, by and through the negligence, careless and reckless acts, of the agents, servants, and employés of the defendant in charge of the train upon which plaintiff was a passenger, and in charge of the train known as the `Fast Mail,' and in their utter disregard of the rights and safety of the plaintiff and their duty to her, carelessly, negligently, unlawfully, and needlessly, and with a reckless disregard of plaintiff's rights and safety, and of defendant's duty and obligation to plaintiff as its passenger, permitted said Fast Mail train to strike, run into, and upon and against the train upon which plaintiff was a passenger, and shattered, destroyed, demolished, and wrecked the same; that plaintiff's person was caught and became entangled in said wreck, and plaintiff was crushed and bruised and severely injured thereby." The defendant filed its motion to make the petition more definite, which the court overruled. The grounds of the motion were that the allegations of the petition as to the direct and proximate cause of the collision were mere general conclusions, and that it fails to allege wherein or in what particular defendant failed to exercise diligence, or what diligence it could have exercised to have prevented the accident. The action of the court in overruling said motion is assigned as error. In support of defendant's position on the action of the court in overruling its said motion, we are cited, among others, to the following authorities: In Gurley v. Ry. Co., 93 Mo. 445, 6 S. W. 218, it is held that: "Where the petition charges that plaintiff, who was attempting to make a crossing, was caught between two cars standing on defendant's side track, by reason of its carelessness and negligence in drawing and forcing its cars together, a recovery cannot be had for negligence of the defendant in leaving cars standing on the track without securing them." That was a case where plaintiff relied on one specific charge of negligence, and proved another and different act of negligence. In Kerr v. Simmons, 82 Mo. 269, the court held that neither evidence nor conclusion of law are to be stated in a pleading, but the facts should be stated to which the law is applicable. The other cases cited have been examined, and found to have no particular reference to the question.

The defendant insists that the petition attempts to charge specific acts of negligence, but, as stated, these allegations are uncertain and indefinite. The charge of the petition is that the injury was caused by the negligent acts of defendant's employés in permitting the two trains to collide. But it does...