Watson v. Chicago Great Western R. Co.
| Decision Date | 24 May 1926 |
| Docket Number | No. 15644.,15644. |
| Citation | 287 S.W. 813 |
| Parties | WATSON v. CHICAGO GREAT WESTERN R. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.
Action by Nellie Watson against the Chicago Great Western Railroad Company. From a judgment granting plaintiff a new trial, after an adverse judgment, defendant appeals. Affirmed.
Brown, Douglas & Brown, of St. Joseph, for appellant.
S. C. Greathouse, Duvall & Boyd, and Miles Elliott, all of St. Joseph, for respondent.
This is an action in damages for personal injuries.
Defendant is a corporation engaged in the business of operating within the state of Missouri, and elsewhere, a railroad as a common carrier of passengers for hire. On June 29, 1924, plaintiff, with her husband, was a passenger for hire on one of defendant's passenger trains from Minneapolis, Minn., to St. Joseph, Mo., and on said morning at about 7:30 the said train was derailed and wrecked near the town of Parnell, Nodaway county, Mo. The chair car, or day coach, in which plaintiff was riding, left the track and went down an embankment on the east side thereof, approximately 10 to 12 feet, where it came to a stop, partially buried in mud and water, in the ditch. Immediately preceding the derailment, plaintiff and her husband were seated on the west side of the coach. The husband extricated plaintiff and himself from the predicament by breaking a window of the coach and climbing out; whereupon they went through a fence into a pasture, where they remained for about an hour, when they were taken to a house in the town of Parnell. Late in the afternoon they were taken to St. Joseph on a relief train. The wreck was serious, one man being killed outright and others injured more or less seriously.
Plaintiff claims that her left wrist, right ankle and leg, and her left leg were bruised and injured, and that after reaching St. Joseph she manifested extreme nervousness. The petition charges negligence as follows:
"That on or about the 29th day of June, 1924, plaintiff became and was a passenger for hire on a passenger train of defendant; and that while she was so a passenger for hire on defendant's said train at a point near defendant's station of Parnell, in the state of Missouri, defendant's said train was by reason of the negligence of defendant caused or permitted to leave the track and to be wrecked, whereby and as a direct result whereof plaintiff was seriously and permanently injured in this."
Judgment is asked in the sum of $2,999.99. Defendant filed answer, and thereafter, by leave of court, filed an amended answer and plea in abatement. Upon the pleadings thus made, the cause went to trial to a jury. The verdict and judgment were for defendant. A motion for a new trial was timely filed and sustained by the court upon the ground that the court erred in giving instruction N. To this ruling of the court in granting a new trial, defendant excepted, and perfected its appeal to this court.
The only point presented for our consideration on this appeal is the alleged error of the trial court in giving said instruction N, which is as follows:
"The court instructs you that the burden rests upon the plaintiff throughout the entire case to prove by the preponderance or greater weight of all the credible evidence to your reasonable satisfaction each and every fact necessary to authorize a verdict in plaintiff's favor, under the instructions of the court, and unless plaintiff has proven such facts by such preponderance or greater weight of the evidence, you must find your verdict in favor of the defendant."
It is urged by defendant that the said instruction was proper, for the reason that plaintiff sought to recover under the doctrine of res ipsa loquitur. No specific acts of negligence were alleged; she merely alleged that she was a passenger upon defendant's train, and that by reason of the negligence of defendant the train was derailed, and she was thereby injured; that plaintiff, by the evidence in her behalf, accomplished nothing more than to prove that she was a passenger, that the train was derailed, that she was injured, and the nature and extent of such injuries. And these facts are not controverted.
By a number of witnesses, defendant attempted to prove that the derailment was caused by the breaking of a casting in a switch stand as the train was passing over the point of the switch; that the said switch stand was of an improved pattern in general use by railroads throughout the country; that it was in perfect working condition immediately before the derailment, and that there was no known cause why it should have been broken; that a similar casting had never been known to break in the history of railroading, and that there was no way by which defendant could have known that the casting might, or could, break, and no way defendant could have guarded against the accident. There was no rebuttal of this evidence, and no attempt to show any specific acts of negligence on the part of defendant.
As stated, plaintiff alleged no specific acts of negligence, but generally alleged negligence. Under the well-established rule in this state general allegations of negligence are permitted where the plaintiff, not being familiar with instrumentalities employed by the defendant, has no specific knowledge of the negligent act causing the injury, the doctrine of presumptive negligence may be applied. This case comes under the doctrine of res ipsa loquitur. The rule is, further, that if the petition discloses that plaintiff is sufficiently familiar with the exact negligent act or acts causing the injury to enable him to plead them specifically, the doctrine of presumptive negligence does not apply and plaintiff must prove the negligent act as pleaded. Porter v. Lt., Heat & Power Co. (Mo. Sup.) 277 S. W. 913.
The parties agree that the petition herein charged only general negligence. The case just cited (opinion by Walker, J.) is the last utterance of the Supreme Court upon the point under discussion. In that case a situation almost identical with...
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