Whitmore v. The American Railway Express Company

• Decision Date: 02 March 1925
• Citation: 269 S.W. 654,219 Mo.App. 294
• Parties: ELIZABETH WHITMORE, Respondent, v. THE AMERICAN RAILWAY EXPRESS COMPANY, and J. HOWARD BARNES, Appellants.
• Court: Kansas Court of Appeals

269 S.W. 654

219 Mo.App. 294

ELIZABETH WHITMORE, Respondent, v. THE AMERICAN RAILWAY EXPRESS COMPANY, and J. HOWARD BARNES, Appellants.

Court of Appeals of Missouri, Kansas City

March 2, 1925

Appeal from the Circuit Court of Davies County.--Hon. Arch B. Davis Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Pross T. Cross and C. E. Ernst for respondent.

Lathrop Morrow, Fox & Moore, Geo. J. Mersereau and Richard S. Righter for appellant Express Company.

OPINION

ARNOLD, J.--

This is an action in damages for the death of plaintiff's husband alleged to have been caused by negligence of defendants.

The record shows the alleged injury occurred October 11, 1922, at about noon in the city of Albany, Gentry County, Missouri. There is a public square near the center of the town with the courthouse located in the center and streets on the four sides thereof. South of the square and near its center is located the office of defendant Express Company, the street in front thereof running east and west. The station of the Chicago, Burlington & Quincy Railroad Company, over whose lines the defendant express company operates, is located near the southwest city limits and about three-fourths of a mile from the Express Company's office.

Defendant Barnes, nineteen years of age, owned and operated a Ford truck, and under contract with the express company, he hauled and delivered goods shipped and received by said company between its office and the railroad station, for which he received a monthly stipend of $ 65. He also held a contract with the U.S. Government for hauling mail between the post office and the railroad station. He also hauled baggage and other articles for the public for hire.

On the day of the alleged accident, Barnes had gone with his truck to the railroad station to receive and deliver mail and express incident to the arrival of a train. Among other articles loaded upon his truck were some automobile tires, some of which he hung upon the standards on the right-hand side of the truck, presumably for lack of room inside. First he delivered the mail to the post office at the northeast corner of the square; thence returning to the office of the Express Company, proceeding west along the north side of the square, thence south along the west side thereof to the southwest corner, turning east along Wood street, the truck traveling near the sidewalk as it proceeded eastward toward said office.

About this time Marshall M. Whitmore (the deceased), with his son Harry, had gone into the drug store of C. E. Littlewood, the third door west of the express office. Leaving the drug store, Whitmore and his son went to a meat market just east of the drug store. As they emerged from the meat market the elder Whitmore carried some packages under his right arm; they stopped at or near the curb, the father being upon the outside near the curb, facing eastward. While thus standing, and as the truck driven by Barnes passed them, the elder Whitmore fell upon his right arm on the sidewalk. The truck proceeded eastward probably forty feet and stopped in front of the express office. Whitmore arose, or was assisted to arise. When Barnes got down from the truck he said to Whitmore, "I'm sorry that I hit you. Are you much hurt?" or, "I'm sorry if I hit you. Are you much hurt?" There is some conflict as to which expression was used, to which Whitmore replied, "I don't know how bad I'm hurt."

It is in evidence that immediately, or very soon, after the accident, Whitmore went to the office of one Dr. Hartsock, an osteopathic physician in Albany. No member of his family accompanied him, but one of his sons and a brother went with him to the foot of the stairs leading to the doctor's office. On leaving there, Whitmore went to the office of a Dr. Kling, a dentist, for the purpose of having an X-ray picture made, but whether this was in any way connected with the alleged injury does not appear.

Further it is shown by the evidence that some two or three weeks after the accident Whitmore's arm was placed in a cast and so remained for a number of weeks; that about January 2, 1923, accompanied by Dr. Hartsock he went to a hospital in St. Joseph, Mo., where an operation was performed, the nature of which is not disclosed. The testimony shows that a Doctor Weed, or Wade, performed the operation and that a Dr. Wetzel of St. Joseph had some connection with the case. Whitmore remained in the hospital for two or three weeks and after his return home he continued to suffer from some stomach trouble and was unable to eat solid food up to the time of his death, which occurred April 7, 1923.

Plaintiff testified that her husband was attacked with vomiting within two or three days after the accident and that during such attack he threw up clots of blood. She also testified that about three or four days after the accident she saw a bruised spot on his stomach about the size of a dollar. The evidence shows that after the accident, and prior to the operation, Whitmore occasionally received treatment from Dr. Hartsock for his arm. There is no evidence of any treatment for the bruise on his stomach described in plaintiff's testimony. It is shown that he took no medicine after the accident until just a short time prior to his death. After his return from St. Joseph, he was visited once by Dr. Hartsock and that shortly before his death, a Dr. Crockett of Salisbury, Missouri visited him once and administered some medicine.

The petition recites that on October 11, 1922, while said Whitmore was upon the sidewalk in said city, and in the exercise of ordinary care and caution for his own safety, the defendant, acting through its agent and servant, J. Howard Barnes, unskillfully, carelessly and negligently operated said motor truck and the load thereof so as to strike said Whitmore; that the said truck was being operated at a high, negligent and dangerous rate of speed and without giving warning of the approach of said motor truck, when they saw, or in the exercise of ordinary care could have seen the said Whitmore upon the sidewalk in a position of imminent peril and oblivious thereto, in time to have enabled them, by the exercise of ordinary care to have warned said Whitmore of the approach of said truck, or to have stopped or swerved the same to one side and thereby have avoided striking him; but that defendants carelessly, negligently and unskillfully drove and operated said truck against, upon and over said Marshall N. Whitmore; that he was "struck with great force and violence by the motor truck and the load thereof and articles thereon and was knocked to the ground and to the sidewalk, then and thereby injuring him, from which injuries so received he languished and died on the 7th day of April, 1923."

The separate answer of each defendant was a general denial and a plea of contributory negligence on the part of plaintiff's husband. The reply was a general denial. Upon the issues thus made the cause went to trial to a jury in the circuit court of Davies county, where it had been taken on change of venue.

At the close of plaintiff's case in chief, each defendant offered a separate general demurrer. When these were overruled the defendants offered no evidence and the case went to the jury. It returned a verdict of $ 6,000 against both defendants and they both appealed.

In view of the fact that Express Companies are common carriers (indeed declared by statute to be such, section 10089, Revised Statutes 1919), and their duty involves the continuous custody of goods received from the time of such reception to their final delivery to consignee, we see no merit in defendant's contention that Barnes was an independent contractor and not the servant of the Express Company. [10 C. J. 48, sec. 24, D; Downs v. Pacific Express Co., 135 Mo.App. 330.]

Appellants contend that both the demurrers should have been sustained, because: (1) There was no evidence that deceased was struck and the physical facts show that his fall could not have been caused that way. (2) There was no evidence that Whitmore was injured at the time he fell; no evidence of the character of the ailment of which he complained, and no evidence of the character of the ailment from which he died. (3) Plaintiff carefully suppressed any evidence of the case or character of deceased's lingering illness or of his death. (4) Plaintiff suppressed and withheld available evidence of the character of deceased's injuries and ailment, whence arises the presumption that this evidence would not have supported the charge that the striking caused his death. Wherefore defendants say, not only did the proof fail to disclose that deceased was struck, but that in view of the absence of evidence as to what was the nature and character of the ailment from which he suffered and of which he died, and the refusal of the plaintiff to allow the facts in that regard to be shown, the jury's finding was based on a mere guess or conjecture.

We think there was substantial evidence to enable the jury to say the truck struck deceased. His son was on deceased's right as the truck passed, says it passed going east in the same direction they were looking, and as it passed his father fell, his money and knife flying out of his pockets. Witness did not see truck strike his father; just the front of the truck had passed his father when the latter fell; the truck was going fast; he fell on his face.

Littlewood sitting in the window of his drug store, when asked to tell what he saw, testified: "Gentlemen, I was sitting there in that seat and I was looking east, see, and I could not help but see the truck hit him, that is, with some tires on the outside, and knocked him down. . . . Q. Where did the truck strike him...