Wait v. Omaha, K. C. & E. R. Co.

• Decision Date: 17 December 1901
• Citation: 65 S.W. 1028,165 Mo. 612
• Court: Missouri Supreme Court
• Parties: WAIT v. OMAHA, K. C. & E. R. CO.

65 S.W. 1028

165 Mo. 612

WAIT v. OMAHA, K. C. & E. R. CO.

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

RAILROADS — INJURY TO PASSENGERS — CARRYING PASSENGER ON FREIGHT TRAIN — OPERATION THEREOF.

Plaintiff boarded a freight train in the switch yards, before it had reached the station, when it stopped at a water tank. The station agent told plaintiff that he should get on at the water tank. As the train approached the station, plaintiff stepped out of his seat to take off his overcoat, and while so occupied was violently thrown across the seats, by the train stopping at the station, receiving injuries. Plaintiff testified that he knew freight trains had to have more or less slack in the couplings, which caused jolts in starting or stopping. There was no evidence of defects in track, train, or appliances, or any want of skill in the handling of the train, or that it stopped at an improper place. Held, that the shock was an incident necessary in the running of freight trains, which the plaintiff will be deemed to have assumed.

Appeal from circuit court, Sullivan county; John P. Butler, Judge.

Action by William J. Wait against the Omaha, Kansas City & Eastern Railroad Company. From a judgment in favor of the defendant, the plaintiff appeals. Affirmed.

Wilson & Clapp, for appellant. J. M. Winters and J. G. Trimble, for respondent.

BRACE, P. J.

This is an action for personal injuries, in which, at the close of the evidence, the court sustained a demurrer thereto, and instructed the jury to return a verdict for the defendant. From the judgment on the verdict returned in pursuance of such instruction, the plaintiff appeals, The only question in the case is whether the court erred in sustaining the demurrer. The material evidence in the record, on which this question must be determined, is as follows:

The plaintiff, who is 6 feet 1 inch tall and weighs from 220 to 225 pounds, and who was 41 years old at the time of the trial, testified as follows in chief: "On February 25, 1898, I was a traveling salesman for Bowman, Boyer & Co., of Keokuk, Iowa. On the 24th I had been in Milan, — staid all night there. The next morning I was going to Greencastle. I went down to the depot that morning (the 25th), I think, something after 7 o'clock, — close to 7. I made inquiry there about what time the train would leave. They said the train would not probably get out of Milan before 9 o'clock. I bought a ticket for Greencastle, and staid around the depot until the train came in. It was up around the yards doing its work, and after they apparently got the work done in the yards they pulled down to the water tank. The water tank, I think, is south from the depot. Not being acquainted in Milan, I cannot exactly tell the points of the compass. I do not know how far the water tank was from the depot. I never paid any attention to it since. That morning I noticed quite a length of freight train, and it was the length of that train. It was quite a distance back from the depot. I said to the agent: `Will the train stop here at the platform?' He said: `No; it will possibly not stop at the platform. You had better go back there and get on. When they are late, they will put right out.' I got on at the water tank, and the train started out. A man by the name of Rickett got on with me, and there was one other man on the train, both strangers to me. The train started out, and just as the caboose had got a little past the depot I supposed the train had pulled out for good, and I raised up in my seat to take off my overcoat, and I stepped out of the seat kind of sideways, and I had my left arm throwed out like that, when all at once the train stopped suddenly, and it throwed me. There was a seat directly in front of me that had no back on it, — it was broke off, — and the next seat was turned the other way, and the other one this way, and throwed two backs together; and I struck my back and side right across those two seats, and I went on there with force enough that I broke them right down, and it kind of stunned me at first, and it knocked the breath out of me, and I lay there for a half minute, and got up and sat down in the seat. I could hardly speak, and could hardly catch my breath. * * * I went on to Greencastle and got off there. I could hardly get up town. When I went up street I vomited blood, and went and saw a doctor. That night I took the passenger train for my home at Cedar Rapids, Iowa, and got there next day. On my arrival home I called in two physicians, Drs. Raymer and Kegley. I had two ribs broken, and three or four more loose from my backbone, and my spine was hurt. I was confined to the house seven or eight weeks. I wore a plaster cast. I was then out on the road for three days, but had to go back home. I did not go out again at all. I staid until I lost my position. Every time I take a little cold, it seems to settle in this side, and my spine and my kidneys have been bad ever since. I have been doctoring for them, and they are still bad. At the time of this injury I was getting $125 per month and expenses, and then a commission over and above certain sales, — had been for years. I paid my physicians and nurse about $200. My expenses outside of that were probably $50 or $75." On cross-examination: "* * * I went down to where the caboose was. It was a combination car, — something after the order of a passenger car; had seats in it with slat backs. It was not built like the ordinary caboose. The rear end had seats the same as in a passenger car, only they were not upholstered. They were of oak. I got on at the rear end of that car, — went in at the rear door. I sat down on the east side, right next to the rear end of the car. As the train pulled out, I got up to pull off my overcoat. I have been traveling for nearly 22 years. I have ridden over nearly all the roads in North Missouri and Iowa. I know the jar and jolts one is subject to. I braced myself to be in position, so, if it took slack or anything, to protect myself. I knew that freight trains, in order to be pulled and handled, had to have more or less slack, and that in starting and stopping slack is liable to cause jars and jolts, and oftentimes throw men down when they are sitting in the seats. I have been on trains when that happened. I knew that most of the trains that run have some of the cars equippel with air, and that makes a more sudden stop than the old-style hand brake. As the train pulled up, I got up to take off my coat. I was standing out in the aisle. As the jar came with the stop of the train, I did not go kind of sideways down the aisle. I stood braced in this shape, and, when they came up with such a sudden jar, it just threw me right over, without any warning or anything of the kind, and I struck my back. The seat right next to me had no back. The next seat was turned right over, so the two backs came together. I was out in the aisle, with my feet some distance apart, so as to brace myself. I was facing west, toward up town. * * * I bought a ticket shortly after I went down to the depot. I sat around the depot and waited. The first I noticed the train, when it came in, it was further up from the water tank. It was further south. I didn't pay much attention to that. I knew they were switching around...