149 Mo. App. 648 | Mo. Ct. App. | 1910
This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant in operating its train. Plaintiff recovered and defendant prosecutes the appeal.
Defendant is a public carrier of passengers- and at the time of his injury plaintiff was a passenger on a freight train on which it carried passengers. A considerable number of persons boarded defendant’s local freight train and were assembled in its caboose at Sikeston for the purpose of being conveyed to their homes in Morehouse, about six miles distant. The party had attended a funeral at Sikeston during the day and hence the large number. Because of their number, all of the seats in defendant’s caboose were occupied and plaintiff, together with several other men and some three or four young ladies, was standing in the aisle of the car at the time of the mishap which gives rise to the pending suit. The negligence relied upon in the petition for a recovery is to the effect that defendant so carelessly and negligently operated its train as to suddenly stop it in such an extraordinary and violent manner as to cause an extraordinary jerk and jar which precipitated plaintiff to his injury. The proof shows plaintiff was standing
There is no evidence whatever in the record before us that the sudden stoppage of this freight train was either extraordinary or unusual. Plaintiff himself says, “I stepped on the train at the depot when they stopped to take on á couple of ladies; I started to walk into the caboose and they started up slow and stopped suddenly and I fell out of the door.” At another place in his testimony he says, “It was a very sudden jar; I know
“Q. Well, did you see anybody fall down in the car? A. Yes, sir; I saw Annie Taylor.
“Q. Who else did you see? A. Another girl; I don’t remember who it was.”
The witness said these young ladies were standing in the body of the car and fell for that reason. The same witness, when describing what is alleged to be the negligent act, said “I consider it a pretty hard jolt.” And this is the entire purport of the testimony of this witness. Another witness for plaintiff said the train was a long one consisting of many freight cars and of course there was considerable slack to be taken up, as in all cases of such trains, when it came to a stop. He said he could not say but he supposed the jar was from the slack in the train when the stop was being made. Another witness for plaintiff, in speaking of the occurrence said, “Well, it started and then there was a sudden jerk together.” “Q. What kind of a stop did it make? A. A very sudden stop.” 'Another witness for plaintiff testified the stop was very sudden. It jolted the passengers up considerably. The witness also said two ladies who were standing in the car fell down at the same time plaintiff fell backwards through the door. This is every word of testimony the record contains and relied upon to establish negligent conduct on the part of defendant in operating the train. From all the evidence it appears no one was injured in the least except plaintiff. The train was still at the station and engaged at work in the yards. Plaintiff knew this and every person who takes passage on a freight train knows and understands that such trains do a certain amount of switching in depot grounds, which involves pulling forward and suddenly stopping by means of air-brakes. B!y accepting passage on this train, plaintiff assumed the risk from such injuries as might befall him from the
Under the Constitution, the case of Hedrick v. Mo. Pac. R. Co., supra, is conclusive on this court, and it is our duty to rule accordingly. The judgment is reversed. It is so ordered.