Och v. Missouri, Kansas & Texas Railway Co.

36 L.R.A. 442, 31 S.W. 962, 130 Mo. 27, 1895 Mo. LEXIS 361
CourtSupreme Court of Missouri
DecidedJuly 2, 1895
StatusPublished
Cited by73 cases

This text of 36 L.R.A. 442 (Och v. Missouri, Kansas & Texas Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Och v. Missouri, Kansas & Texas Railway Co., 36 L.R.A. 442, 31 S.W. 962, 130 Mo. 27, 1895 Mo. LEXIS 361 (Mo. 1895).

Opinion

Burgess, J.

This is an action for damages for personal injuries sustained by the plaintiff Julia Och, while a passenger on one of defendant’s trains en route from Gainesville, Texas, to St. Louis, Missouri. The plaintiff William Och is her husband. The suit was brought in the circuit court of the city of St. Louis. A trial before a jury resulted in a verdict • and judgment for plaintiff in the sum of $7,521.45 from which defendant appealed.

The petition alleges “that on the seventh day of October, 1891, plaintiff Julia was a passenger on defendant’s cars from Gainesville, Texas, to the city of Sedalia, Missouri, and while at a station called Green-ridge before reaching and near to Sedalia, defendant’s porter in charge of the car on which she was a passenger did negligently and carelessly pull out of its place a ventilating window in the roof of said car, which, through the negligence and carelessness of defendant, was insecurely affixed in its place, and was unsafe and defective in condition and construction, down onto the head and face of the plaintiff, cutting [34]*34and bruising ber head and face and knocking her senseless; that she remained unconscious for considerable time; that the falling of said ventilator onto the plaintiff’s head was without fault of the said plaintiff and was caused by the negligence of the said porter in forcibly and carelessly jerking the ventilator out of its fastenings, and also by the insecure and dangerous manner in which the same was then fastened in the roof of said car, as well as by the defective character and condition of the same at the time it fell, which insecure and dangerous manner and defective character and condition the defendant at and before the said date knew; or by the exercise of the care due toward its passengers, should and would have known.”

The petition further alleges that, at the time of the injury, the plaintiff, Mrs. Och, was pregnant, and that, from the nervous shock caused by the blow on her head, she suffered a miscarriage; that she was for many days confined to her bed, and was finally compelled to submit to a painful and dangerous surgical operation in having one of her ovaries removed; that she is permanently disabled and crippled for life. The damages were laid at $25,000.

Defendant in its answer, admits that it is a corporation and a common carrier of passengers; and that on the seventh day of October, 1891, plaintiff Julia Och was a passenger upon one of its trains, but denies all other allegations in plaintiffs’ petition. The answer then, as a special defense, alleges that after said accident occurred, and on the same day plaintiff Julia claimed that she had been injured by a small ventilator falling upon her head, and that she had a demand against defendant on account of said injuries; that it fully compromised, adjusted and settled said claim and demand, and, for a valuable consideration paid by defendant to said Julia, she did then and there fully [35]*35release and discharge defendant from all claims of whatever kind or character that she might have on account of or arising from said alleged accident and injuries, and pleads said settlement and release in bar to plaintiffs’ action.”

To defendant’s answer, plaintiffs made reply as follows:

“Now come the plaintiffs in the above entitled ■cause, and for their reply to the new matter set up in defendant’s amended answer herein deny that on the seventh day of October, 1891, or at any other time, the plaintiff, Julia K. Och, compromised, adjusted or settled the claim and demand set out in her petition herein, and deny that she released and discharged the defendant from any and all claims of whatsoever kind •and character that might arise out of the injuries of the plaintiff complained of in her petition.
“And further replying herein the plaintiffs aver that the employees and agents of defendant, including its physicians, surgeons, hospital nurses, claim agents and conductors, fraudulently conspired together to ■unfairly and unlawfully obtain from the plaintiff a written release of her cause of action in this suit; that in pursuance of such plan and conspiracy said agents within about an hour after she • received the injuries complained of, and while she was in a feeble, bewildered and partially unconscious condition, took plaintiff to a railroad hospital in Sedalia, where the railroad surgeons and physicians at the instance of defendant, examined her injuries and pronounced them trifling and of no importance, and assuring plaintiff that she was not seriously injured and that she would suffer no inconvenience from her wounds; that thereupon the claim agent for the defendant company prepared a written receipt and release of her claim in the petition herein set out and tried to induce [36]*36plaintiff to sign it on payment to her of $20; that said plaintiff told said agent that she would not sign any release of her claim in this suit; that thereupon defendant’s agent stated to her that he would change said writing so it should not be a release of any damages resulting from said injury, and he then and there professed and pretended to so change the same, and to strike out therefrom the release aforesaid, but, as plaintiffs have been informed, since the institution of this suit, and as they now aver, the said agent did not cancel or strike out or change said writing so as to exclude therefrom the release aforesaid; but at the time said agent assured plaintiff Julia K. Och that said change had been made; that, at the time, said plaintiff was sick in mind and body and was, from her mental condition, unable to carefully read and understand said writing, and, believing in, and relying upon, the representations so made by said agent, she did receive said money and signed said receipt and release so fraudulently and wrongfully obtained from her; that said plaintiff only signed said receipt on the faith of said representations, and except for that would have persisted in her refusal to sign the same; but that, relying upon said representations, she was fraudulently induced to execute 'the same.
“Wherefore plaintiffs say that her signature to said writing was fraudulently and wrongfully obtained, and therefore not lawfully executed by her. Wherefore plaintiffs ask the court to declare said instrument null and void, and for "judgment as in the petition asked.”
After the jury was impaneled, and before any evidence was introduced, defendant’s counsel objected to the trial of the case by a jury on the ground that the pleadings present a question which should be tried by the court sitting as a court of equity before the [37]*37other branch of the case should be submitted to the jury. The objection was overruled and defendant duly excepted.

The material facts »as disclosed by the evidence were as follows: The plaintiff was twenty-six years old, had been married eight years, and had a son seven years old, but had never had any other children. On October- 6, 1891, she left Gainesville, Texas, for St. Louis, by way of the M., K. & T. railroad to Sedalia; thence by the Missouri Pacific to St. Louis. She rode in a chair car, and on the morning of October 7, when south of Greenridge, a station about twelve miles from Sedalia, the colored porter commenced to open the ventilators, which are placed in the elevatiqn between the lower and upper decks of the car.

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Bluebook (online)
36 L.R.A. 442, 31 S.W. 962, 130 Mo. 27, 1895 Mo. LEXIS 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/och-v-missouri-kansas-texas-railway-co-mo-1895.