53 Mo. App. 462 | Mo. Ct. App. | 1893
— This was an action to recover damages for personal injuries. The cause of action alleged in the plaintiff’s petition is that said “defendant by its agents and employes managed and controlled said train of cars in such a careless and negligent manner as to suddenly and with great force and violence stop
The defendant assigns for error the action of the trial court in refusing to direct the jury at the conclusion of the evidence that under the pleadings and evidence of the case the, verdict should be for the defendant. The plaintiff offered evidence conducing to show that she was a -passenger on one of defendant’s passenger carrying trains and was injured without her fault by the sudden stoppage of the train. This was sufficient •to establish the plaintiff’s prima facie case of negligence on the part of defendant and, unless explained, justified a recovery. Higgins v. Railroad, 36 Mo. 419; Hipsley v. Railroad, 88 Mo. 348; Furnish v. Railroad, 102 Mo. 438. The question then is, did the evidence adduced by the defendant rebut the plaintiff’s prima facie case? A brief reference to the defendant’s evidence will, we think, be sufficient to show that this question should be resolved in the affirmative.
It appears that the train upon which the plaintiff took passage was composed of about thirty cars with caboose attached, and that between the points where the plaintiff took passage and that of her destination the face of the country is undulating. It further appears that, while the train was moving between the two points already stated, a sudden and violent “jolt” or “jerk” occurred which threw one of the defendant’s brakeman, engaged in operating the train, and who was passing through the caboose, upon the plaintiff, inflicting the injuries of which she complains. It is not disputed that this occurence was caused by the lessened
We are able to understand something of how freight trains are made up and operated and the usual incidents thereof by reference to the following extracts from the testimony of the witnesses.' Charles Hurst testified: “After leaving Macon, slack runs down forward until you get to East Fork bridge. It is down grade to the bridge. When the engine takes up the slack and takes it out, it jerks a little; in going down hill the slack of the train would throw a person forward (because the cars are striking the engine and that checks them), and when the engine takes out the slack that runs up against it, it would throw a person backward. In going down hill, an engine runs as fast as the cars and the slack of the cars strike the engine when the engine begins to run up hill. Q. Then the time when the slack is running forward that way and the cars strike the engine is when the speed of the engine is decreased in consequence of going up hill? A. Yes, sir.” James Mullinix,
A ■ railway company assuming to carry passengers for hire upon its freight trains is bound to exercise the same degree of care as is required m the operation of regular passenger trains, the difference being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance. Whitehead v. Railroad, 99 Mo. 263; McGee v. Railroad, 92 Mo. 208; Wagner v. Railroad, 97 Mo. 512. In this day and age it may be fairly assumed as a fact within common knowledge that there is more or less of
It is well settled that negligence cannot be presumed when nothing is done out of the usual course of business unless the course is improper. There must be some special circumstance calling for more particular care and caution to make liability. There is nothing in the record to indicate that there was any act or any omission not incident to the constant usage of the road or indicating fault. In the light of the common, knowledge and experience of mankind respecting travel by rail on freight trains, how can it be said that the evidence in this case discloses a basis for the charge of negligence? It has been said that, when something unusual occurs which injures plaintiff, but such unusual occurrence is not even inferentially the result of an unusual act of the defendant and the defendant has, so far as he is concerned, been pursuing his usual course which has heretofore been done in safety, then the unusual occurrence is what is called an accident. Abbott v. Freeman, 35 L. T. N. S. 783.
When plaintiff as a passenger entered the caboose attached to defendant’s freight train she knew its character and the inconvenience and risk attending a passage thereon to which she would be subject. These she preferred to assume rather than wait an hour later for the regular passenger train. If under such circum
The plaintiff’s prima facie case, we think, was entirely overcome and destroyed by the facts which the defendant’s evidence tended to prove.
We can discover no ground of principle upon which the plaintiff is entitled to recover. The court should have given the peremptory instruction asked by the defendant. It follows that the judgment of the circuit court must be reversed.