| Mo. Ct. App. | Feb 15, 1904
This is an action hy plaintiff to recover damages for injuries alleged to have been received December 24, 1902, while a passenger on one of defendant’s trains consisting of four freight cars and a passenger coach, making what is known as a “mixed” train. The coach was a combination car divided by a partition, one part being used for passengers and the other for baggage.. According to the plaintiff, this car on the day of Ms alleged injury was crowded with passengers to the extent that he was unable to obtain a seat, and while he was standing in the aisle of the coach, which was attached to the rear of the train, he was suddenly thrown against a stove and' onto the floor because of a violent jar of the car, whereby he was seriously injured.
The testimony showed that the engineer separated the train within about a mile of G-reenfield, taking the two front cars to that town and returning for the remainder. Attaching the engine to these latter cars he started forward, whereupon the coupling between two of the cars became detached. Again connecting the cars, he proceeded forward something like a half a mile when the same coupling became detached, again separating the train, the front part of which continued on a distance of 30 or 40 yards when it was stopped by the automatic action of the brakes about the distance named in advance of the detached rear section. These latter cars continued to move forward until they collided with the then stationary front cars with much force, throwing plaintiff against the stove and onto the floor of the passenger coach and causing his injuries complained of.
After testifying to substantially the foregoing facts, J. W. Gott, a brakeman on the train, introduced as a witness by plaintiff, further testified that the cars which separated, as aforesaid, had been attached by what is known as automatic couplers, and air brakes were used.
The defendant’s evidence tended to show that the cars were equipped with the latest and most approved automatic couplers and air brakes; that they were all in good order and that an examination subsequent to the accident disclosed no defects in them. It was admitted that the two cars that came uncoupled belonged to another road.
At the close of plaintiff’s case and also after all the evidence had been heard, the defendant asked an instruction directing the jury to return a verdict in its favor, both of which the court' refused. This action of the court is assigned as error. As defendant’s evidence did not tend to strengthen plaintiff’s showing, it will only be necessary to consider whether under all the evidence plaintiff was entitled to recover.
The law is that a railroad company engaged in the carriage of passengers, “is required so far as it is capable by human care and foresight to carry them safely, and it is responsible for all injuries to its passengers from even the slightest negligence on its part.”
The defendant contends that the uncontradicted evidence of its employees to the effect that upon inspection after the occurrence in question it was found that both the air brake and coupling were in good condition, overturned plaintiff’s, prima facie case, and that the jury should have been so instructed. In Gannon v. Gas, 145 Mo. 502" court="Mo." date_filed="1898-07-06" href="https://app.midpage.ai/document/gannon-v-laclede-gas-light-co-8012926?utm_source=webapp" opinion_id="8012926">145 Mo. 502, the holding was: ‘ ‘ The plaintiff is entitled to have the jury determine the credibility of the testimony offered, even though he offer nothing to contradict that of defendant. Nor can the court assume as a matter of law that the testimony is true, satisfactory or convincing to the jury simply because no one by words contradicts what has been uttered. ’ ’ But the decision in that case seems to be, if accepted in its broadest sense, in conflict with other decisions of the Supreme Court and the Courts of Appeal. Downey v. Railway, 94 Mo. App. 137" court="Mo. Ct. App." date_filed="1902-04-15" href="https://app.midpage.ai/document/downey-v-mississippi-river--bonne-terre-railway-co-8262971?utm_source=webapp" opinion_id="8262971">94 Mo. App. 137; Glasscock v. Railway, 82 Mo. App. 146" court="Mo. Ct. App." date_filed="1899-12-04" href="https://app.midpage.ai/document/glasscock-v-missouri-kansas--texas-railway-co-6619483?utm_source=webapp" opinion_id="6619483">82 Mo. App. 146; Hite v. Railway, 130 Mo. 140; May v. Crawford, 150 Mo. 527. But we do not think it material whichever way the rule may be so far as this case is concerned. It is true, there were no witnesses called by the plaintiff to contradict defendant’s evidence that the air brakes and coupling were in good order upon inspection; but there were circumstances that tended to contradict such evidence— or, rather, the circumstances developed by plaintiff’s testimony did not accord with defendant’s evidence, and which created an issue as to the credibility of witnesses — in that the automatic coupling in ques
Instruction number one asked by defendant and refused by the court was to the effect that if plaintiff after entering the car was furnished with a seat and voluntarily left it and was standing when thrown down by the jar, and that his so standing contributed to his injury, he could not recover. This instruction was properly refused. It is true plaintiff was provided with a seat when he entered the car, but he afterwards got up and went into the baggage department of the car and when he returned someone had taken his seat; and as there was none other unoccupied he was compelled to stand. It is hardly necessary to offer any reason to
Defendant’s instruction number two, also refused, was as follows: “If you believe from the evidence that defendant’s cars were equipped with automatic couplers and such were in good order, and that the train was equipped with air brakes and they were in good order, and that no defects could be discovered in either the brakes or the couplers by careful examination, and that cars of the kind' do become uncoupled when handled in the manner that the cars in question were, and that these cars became uncoupled without apparant cause, or discoverable defect, then the defendant is not liable, ’ ’ etc. The plaintiff urges that this action of the court was justified upon the ground that the evidence tended to show that the platform of the cars that became detached were of unequal height, which might have accounted for their becoming uncoupled. Without entering into a discussion as to whether a railroad carrier would be justified in refusing to receive the cars of another carrier because of a difference in their height, respectively, we are of the opinion that the instruction in its scope would not only include that circumstance but every other that would go to show negligence. The words, ‘ ‘ and that these cars became uncoupled without apparent cause or discoverable defect,” imposes the burden upon the defendant in its most comprehensive language to disprove every kind of negligence.
Instruction number three was rightfully refused. It is as follows: “Although you may believe from the evidence that the train in question broke into, and that the two parts thereof collided and caused a jar or concussion, yet if such jar or concussion was not greater than the jars or concussions usually incident to the operation of mixed trains, then the plaintiff must be held to have assumed the risk of such jar or concussion, and
Other instructions given at the instance of plaintiff are unobjectionable. Those given by the court on its own motion seem proper — if not they are not subject to attack as no exceptions were made to them at the time.
Respondent insists that the appeal should be dismissed for the reason that the affidavit for an appeal is not found in the record. It is true that the affidavit is not in the abstract before the court, but a copy of the record entry of the court recites that an affidavit for an appeal had been filed and a copy of the entry recites that an appeal had been allowed. The recitation of the record that such an affidavit was filed raises the presumption at least that it had been; and in the absence of a showing to the contrary, the presumption is conclusive.
For the error in refusing said instruction number two, the cause is reversed and remanded.