Mefford v. Missouri, Kansas & Texas Railway Co., 121 Mo. App. 647

Mefford v. Missouri, Kansas & Texas Railway Co.

121 Mo. App. 647 | Mo. Ct. App. | 1906

ELLISON, J.

Plaintiff was a passenger on one of defendant’s passenger trains which was wrecked while passing through the State of Kansas, plaintiff being injured by reason of the wreck. There was a verdict and *651judgment in her favor in the trial court. A better understanding of our conclusions may he had by setting out a portion of the petition. Plaintiff alleges:

“That on the 12th day of February, 1905, while on said passenger train in -transit to said Pryor Creek, at a point about two or three miles south of Moran in the State of Kansas, at or near the water station on defendant’s said line of railroad, the train on which she was being carried was wrecked and the engine and a portion of the train thrown from the track. That by reason of said wreck plaintiff was thrown violently down in the car and severely injured. Plaintiff states that the cause of said wreck and injury to the plaintiff was the negligence of the defendant in keeping and maintaining an unsafe and dangerous roadbed and track at the place where said wreck occurred. That the same was out of repair and unsafe and dangerous for the passage of trains at said point. As a further cause for said wreck, said defendant, its agents, servants and employees, carelessly operated said train at the time of said wreck and that the aforesaid negligence complained of, caused the said train in which the plaintiff was being carried, to be wrecked at said point as aforesaid.” The injury is then set out.

We think the arguments of the respective counsel show that the difference between them as to the allegations of the petition is more apparent than real. The charges of negligence are general though relating to a particular matter. The particular matter was maintaining an unsafe and dangerous roadbed and track, though the charge is general as to the particulars or specifications of wherein it was unsafe and dangerous. And the same may be said of the charge of negligent operation of the train. That is a general charge of negligence in- relation to the specific matter of operating trains. So Avhile the plaintiff in such charges should be required to make out his case by proving a dangerous *652track, or a negligent operation of the train; yet he would not he confined to any specific negligence under either head. He could shoAV any negligence which made a track dangerous, or anything which would he a negligent operation of the train.

In the general instruction given at the request of the plaintiff, there Avas included a statement that if plaintiff was a passenger and was injured in a wreck Avhere the train was thrown from the track that ‘then it devolves upon the defendant to prove to your satisfaction that said wreck and derailment was not caused by the negligence of the defendant.” It is claimed that that part of the instruction cast upon the defendant the necessity of proving that it was not guilty of negligence of any kind whatsoever which might cause á wreck, and that it should at least have been limited to throwing the burden upon defendant to prove that it was not guilty of the kind of negligence which the petition alleged was the cause of the wreck, viz., that it had not negligently maintained a dangerous track, or carelessly operated the train. It was held in Logan v. Railroad, 183 Mo. 582, and Furnish v. Railroad, 102 Mo. 438, that an instruction might properly cast the burden upon the defendant to exculpate itself when the plaintiff had shown the act causing the injury had occurred, even in cases Avhere the character of negligence was alleged. In the instruction complained of, it is true there is no limit placed upon the negligence which defendant is required to show it Avas not guilty of, yet from what follows in the instruction the entire portion, of which de; fondant complains, is left harmless. For immediately following the broad statement of this burden upon defendant, the jury is required to find that the cause of the wreck was the negligence alleged in the petition.

Plaintiff’s counsel in cross-examining one of defendant’s witnesses asked him several questions as to what he heard the negro porter on the train say; among *653others, if he heard the porter say tha,t the wreck was caused by water dripping down from the tank and formed into ice. Defendant objected to the question whereupon plaintiff explained that the object of the testimony was to test the witness's memory and to ascertain if he had told the truth in his direct examination. Counsel disclaimed any intentioh to bind the defendant by what the porter may have said. The question was permitted and the witness answered that he heard some one say that that was what caused the wreck, but could not remember who said it. This witness stated on his direct examination several matters showing that he remembered particular things at the time of the wreck. The position of the passengers, what was said, and whether any complaints were made, etc. Among other things, he stated on his direct examination that “some people said there was a wreck.” He was asked by. defendant’s counsel about the porter. He was asked, “What did he do,” and answered, “He came around with a paper of some kind and had us — he asked us'all some questions — where we was from, and various things, and if we were hurt.” The limit of a cross-examination is necessarily, in great degree, entrusted to the discretion of the trial court, and in view of the testimony given by this witness in his direct examination, especially as to the porter, Ave deem the ruling of the trial court to be proper.

The defendant insists that no case was made for the plaintiff. We, hOAvever, regard the case as well established. An examination of the record discloses a serious wreck. It seems there Avere two engines pulling the train, one was throAvn on one side of the track, and the other so far as the right of way fence on the other side, and one or more cars were overturned. The condition of the track with reference to dripping of water thereon from the tank and freezing into ice appears in evidence. It seems clear to us that including proper and *654reasonable inferences permissible for the jury to draw, there was abundant evidence to support the charge that the wreck was occasioned either by defendant maintaining a dangerous track, or negligently operating the train, or both these.

The judgment will be affirmed.

All concur.