130 Mo. App. 658 | Mo. Ct. App. | 1908
This is an action by a passenger against a common carrier to recover damages resulting from personal injuries alleged to have been caused by the negligence of the carrier. Verdict and judgment were in favor of plaintiff in the sum of $958 and defendant appealed.
By the Court. He can state whether it stopped suddenly or not.
Plaintiff, who is a farmer, did not claim to possess any expert knowledge relative to the nsnal and ordinary manner of operating and stopping freight trains and did not attempt to say that the stop made in this instance was extraordinary, i. e., not one incidental to' the proper- and usual operation of that class of trains. He introduced as a witness a Mr. Knoop, a traveling salesman,, who testified that he was a passenger on the train; and. that before it came to a full stop he left his seat and! proceeded to the rear platform of the caboose and was; standing on the step waiting- for the car to stop when its sudden halt caused him to step to the ground. He said: “Well, as near as I could tell you, why I was standing there waiting on the train to stop, when the train did stop. Of course, I was just holding with one hand, with my grip in the other, and it threw me and I simply stepped off on to the crossing there. Q. Did it jerk you off? Didn’t it shake yon off? A. I got off there. I wouldn’t want to swear that it shook me off or that it didn’t.”
He alighted in safety and, hearing that someone was hurt inside the car, returned in time to assist in raising plaintiff from the floor. Counsel for plaintiff tried very hard, bnt unsuccessfully, to obtain the statement from the witness that the stop was unusual. We quote from his testimony:
“Q. The question is whether this was an unusually violent stop. Go ahead, Mr. Knoop. A. I should say that this was a little more sudden than any stop made on the way over there on that trip-. The question will lead me to my experience on freight trains. All the experience 1 have is as a passenger, and while being in the traveling business I make it a point to look after myself wherever I am. Q. Was this stop over there more violent than the ordinary stop of freight trains on which*662 you ride? A. Well, I could say tbis, they don’t always stop as sudden as they did that time. By the Court: Was it more violent than ordinarily? A. I don’t know whether I should call it a violent stop. It was a very sudden stop.”
The witness was excused and afterward recalled by plain tiff when the following examination occurred:
“Q. I will ask you was this or was it not more severe, violent or sudden than ordinary stops that you experience in traveling on freight trains? Objection. “Q. Yes, orno? A. Yes, but— By the Court: Explain it if you wish to. A. All I was going to say was that this stop, I don’t think it was just exactly an ordinary stop. I experience a good many sudden stops on a freight train and this was one of them and this was a sudden stop as I said awhile ago.”
Defendant introduced as witnesses the train men and two colored men who were passengers, on the car. All of these witnesses state that before the car came to a. stop plaintiff left his seat and proceeded to the east .door where he stood looking toward the east and with his hand on the door jamb, when the sudden stopping of the train threw him backward to the floor. No other person on the car was thrown off his balance, though all were standing, and no damage to the car or its contents resulted. Defendant’s “witnesses say that the cessation of the car’s forward motion was no more sudden or violent than that ordinarily experienced in the handling of freight trains. There is no evidence of any defect in the road, the engine and cars or their equipment, nor of negligence on the part of the trainmen in handling the train, unless we should say that an inference of negligence reasonably may be drawn from the fact that plaintiff was injured in the manner he describes.
At the close of the evidence, defendant requested the court to give the jury a peremptory instruction to find for the defendant. The refusal of such instruction
In determining the question whether or not a demurrer to the evidence should have been sustained, we shall view the facts in evidence in the aspect most favorable to the cause of action asserted. Therefore, we shall assume that plaintiff remained in his seat until the shock occurred and was suddenly and violently thrown to the floor thereby. And, further, that the stop was accompanied by a jolt of some-severity, but with these facts conceded, plaintiff still has fallen short of making-out a case to go to the jury. The rules and principles of law applicable to cases of this character have been before the-courts of last resort in this State so often that it is not necessary to do more than recite them. “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 in the operation of regular passenger trains, the difference being that a passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.” [Guffey v. Railway, 53 Mo. App. 462.]
It is a matter of common knowledge that in starting and stopping such unwieldy trains, sudden jolts and jars of varying degrees of violence are ordinary incidents even where such trains are handled with the greatest care. As such occurrences cannot be avoided in the exercise of due care, the rule is well settled that passengers assume the risk of injury by them as one of the perils of travel by that mode of conveyance. The fact that a sudden and violent jolt or jar accompanies the stopping of a freight train ipso facto will not raise a presumption of negligence. A passenger injured thereby to be entitled to recover from the carrier, must go further: He must adduce facts from which an inference of negligence fairly arises. [Hedrick v Railway, 195 Mo. 104.]
The case just cited is decisive of the one in hand. It
We do not find any evidence in the record before us from which it may be said with reason that the jolt which accompanied the stopping of the train was extraordinarily violent. Plaintiff depicts it as a “terrible shock,” “a severe shock, sufficient to knock the breath out of me,” but these expressions of a non-expert witness amount to nothing more than mere conclusions and possess no probative value. [Guffey v. Railway, supra; Hedrick v. Railway, supra.]. The facts that no one else on the car was overthrown and that nothing in the car Avas "disturbed, strongly support the testimony of all of the Avitnesses except plaintiff that the stop was not extraordinary. The burden was on plaintiff to show by evidence the fact that the stopping of the car was so sud
Plaintiff has failed completely to show the existence of negligence and it follows that the judgment must be reversed.