Young v. Missouri Pac. Ry. Co.

• Decision Date: 05 June 1905
• Court: Missouri Court of Appeals
• Parties: YOUNG v. MISSOURI PAC. RY. CO.<SMALL><SUP>*</SUP></SMALL>

88 S.W. 767

113 Mo. App. 636

YOUNG v. MISSOURI PAC. RY. CO.^*

Kansas City Court of Appeals. Missouri.

June 5, 1905.

1. CARRIERS — INJURY TO PASSENGER — LIABILITY.

Where the passengers on a freight train had received an invitation to get off, and the

car had come to a stop, and, as a passenger was moving out, the carrier's servants, without any warning, moved the train with such force and suddenness as to send the car forward with a greater jump or jerk than witnesses in years of experience had ever known, the carrier was liable for whatever injuries resulted to the passenger from the act.

2. SAME — CAUSE OF INJURY — EVIDENCE.

In an action against a carrier for injuries, evidence examined, and held insufficient to warrant the submission of questions to the jury as to whether plaintiff's injuries were due to the accident, or to an antecedent rupture.

On rehearing. Motion for rehearing denied December 31, 1994. Motion to transfer to Supreme Court denied, and motion to set aside order denying a rehearing set aside, February 6, 1995, and cause set for hearing. Argued and submitted April 11, 1905. Death suggested May 8, 1905, and cause resubmitted. Judgment again reversed.

For former opinion (November 28, 1904) reversing the judgment below, see 84 S. W. 175.

ELLISON, J.

Plaintiff shipped cattle over defendant's road, and accompanied them himself; he having been furnished by defendant with what is known as a "stock pass." He was riding in the caboose, and, on arriving at St. Louis, as he was leaving the car a sudden movement of the train threw him to the floor, and caused two other stockmen to fall upon him. He brought this action for the injuries received, and recovered judgment in the trial court. He complains principally of three injuries as the result of his fall—one to his leg, another to his hearing, and another that he was ruptured.

The defendant, for reversal of the judgment, relies, first, on the refusal of its demurrer to the evidence. In considering that point, we find that the evidence in plaintiff's behalf tended to show: That on arriving at St. Louis the conductor passed along the aisle of the car as the train was moving slowly and cried out: "St. Louis. Get out, get out!" That the train then stopped, and plaintiff started out with two men immediately in front of him, when the train "made a heave forward." Plaintiff said that he was never on a train (and he was an old shipper) "that made such a heave as that made." His feet flew from under him, and he fell upon the floor, with the two men on top of him—the heaviest one across his leg. He described his fall, on cross-examination, in this way: That, as he was starting out, "well, just at that time you never seen such a swoop as the old caboose made. It made a jump, and it looked to me like it jumped clear off the track. Well, now, I just come right back. These two men—one would weigh 180 or more pounds, and the other was a 160-pound man. * * * My heels went right out from under. I fell flat on my back. I just seen stars. You talk about jerks! I have shipped 100 car loads of cattle and hogs. I have shipped to St. Louis time and again, and to Kansas City time and again, and I never was on a train that made such a jerk." The plaintiff's testimony was corroborated by two or more other witnesses. It is quite true that when one rides on a freight train he ought to expect that it will be handled and manipulated in a rougher and more uncomfortable way than would a passenger train, and that it is necessary that he should be more guarded in avoiding injury. But there may be negligence in the movement and handling of such trains, which, resulting in injury, will render the owner liable to a passenger. Here an invitation or direction had been given for passengers to get off the car, and it had come to a stop, when, as plaintiff was moving out, defendant's servants, without any warning, moved the train with such force and suddenness as to send the car forward with a greater jump or jerk than witnesses had ever known in years of experience. There can be no doubt of defendant's liability to plaintiff for whatever injuries resulted from such act, and it is manifest that the court properly refused the demurrer. Jones v. Ry. Co., 31 Mo. App. 614—a case much like the present. See, also, Duffy v. Ry. Co., 104 Mo. App. 235, 78 S. W. 831; Becker v. Lincoln Bldg. Co., 174 Mo. 246, 73 S. W. 581; Straus v. Ry. Co., 75 Mo. 185; McGee v. Ry. Co., 92 Mo. 218, 4 S. W. 739, 1 Am. St. Rep. 706; Hurt v. Ry. Co., 94 Mo. 255. 7 S. W. 1, 4 Am. St. Rep. 374.

There was much evidence tending to show that the condition of plaintiff's leg and his rupture were caused by matters prior to his fall in the car. There was evidence tending to show that plaintiff for years had been afflicted with rheumatism, which had affected his...