Ray v. Chicago, Burlington & Quincy Railway Co.

126 S.W. 543, 147 Mo. App. 332, 1910 Mo. App. LEXIS 557

• Court: Missouri Court of Appeals
• Decided: March 8, 1910
• Status: Published

Opinion

GOODE, J.

Appeal from a judgment for damages given to compensate plaintiff for a personal injury found to have been caused by the negligence of defendant’s servants. Plaintiff had shipped a carload of cattle in a freight train from Canton, Missouri, over defendant’s railroad destined ultimately to Chicago, Illinois, over a route which extended through West Quincy, Missouri. The train passed southward to LaGrange, between Canton and West Quincy, where about noon it took a sidetrack to let a passenger train * pass. Plaintiff had accompanied the shipment, and while the freight train was on the sidetrack at LaGrange, he asked the rear brakeman (Gilfillan) if he (plaintiff) would have time to attend to his cattle. The brakeman replied there would be plenty of time; whereupon plaintiff left the caboose and paid some attention to his stock while the train was on the switch, walked from there to the depot, and again noticed the cattle after the train had moved to the depot on the departure of the passenger train. The freight train consisted of twenty-one cars, and as it stood at the depot on the main track, the engine and six or seven cars were south of the depot door and the remainder of the cars, with the caboose at the rear, were north of the door, the course of the train being southward. When plaintiff went to the depot after first attending to his stock, he saw there the same brakeman who had told him he would have time to look after his cattle, and inquired of said brakeman Avhen the train would start; but received an unresponsive answer. This occurred about five minutes before the train started to leave the station, where it remained a half-hour or more. The conductor was at the depot, saw plaintiff waiting there, knew he was a passenger on the train and that he was the only passenger, but said nothing to plaintiff nor plaintiff to him. Instead of getting on the caboose, plaintiff remained on the platform until the train had started, and then endeavored to board it as it passed him, going at a speed of from three to three and one-half miles an hour, he testified. Before making this attempt, he asked the brakeman, Gilfillan, who was standing on the platform of the caboose, to stop the train or slow it up so he could get on. Plaintiff said the caboose was just starting when he made this request, and “had not got down there yet,” meaning, we presume, to the portion of the platform where he was standing. Gilfillan replied he would not stop the train or slow it down, and if plaintiff wanted to get on he would have to jump on. Plaintiff stated what passed between him and the brakeman with immaterial variations, and we quote one or two versions : “I asked him if he had not better slow the train so I could get on; he said: ‘No, I will not slow up any; if you want to get on this train, jump on.’ ” Again: “I told the brakeman to slow the train up so I could get on; the caboose was just starting; it had not got down there yet; he said he would not do it; if I wanted to get on that train I would have to get on.” The caboose would have moved some five hundred feet before it reached plaintiff. Testimony was put in to show it was the custom of stockmen on defendant’s line to leave cabooses of freight trains at stations to attend to their stock upon statements of the trainmen that they would have time to do so and as to when tbe train would leave the station. Much evidence was given that the train was moving at a more rapid speed when plaintiff attempted to get on board than he testified — at a rate of eight or ten miles an hour. Plaintiff took hold with each hand of the rods at the sides of the steps of the caboose, put his feet on the lower step and was in the act of putting one on the next step when there was a sudden and violent jerk of the train, the hold of his hands on the rods was loosened, he was thrown backward over the rear railing, fell between the rails of the track and sustained a severe injury to his knee, besides other injuries. We quote from plaintiff’s testimony: “After he told me to get on the train I started to the train — down the track the way the train was going— not very fast but in a good walk. I stepped one foot on the lower step, caught the iron with my right hand and one with my left hand, and got both feet on the lower step; just as I went to step up on the other step, there came a jerk of the car and threw me over the back of the railing on to the steps;” (so the record reads). “The train went on; there was no one there; I tried to get up and found I could not get up; crawled up to the depot platform, got up, crawled up with one knee, and sat down, and was sitting there when Mr. Mitchell came up to the depot.” The accident has been described according to the testimony for plaintiff for the purpose of passing on the contention of defendant of lack of proof of negligence in handling the train, and conclusive proof that plaintiff’s own carelessness caused or contributed to his injury. The evidence for defendant conduced strongly to prove plaintiff had no conversation with Gilfillan at LaGrange, was not told by the latter to get on the caboose as it was moving, the conductor did-not see plaintiff on the platform, there was no jerk of the train at all, plaintiff was hurt by grabbing the rods of the caboose in an improper way as the train was moving rapidly, from ten to twelve miles an bour and that be never got bis feet on tbe step. Tbe station agent who stood near and saw tbe accident, describes it thus:

“As Mr. Ray attempted to board tbe train be got up near tbe platform as be saw tbe caboose approach tbe point where be was standing and stood there, and just as tbe caboose passed him be grabbed with both bands tbe handhold and grabiron just like any man would that didn’t know anything about getting on a moving train. He stood perfectly still and tbe train jerked .him in such a manner — be bad a stick in bis band — and that swung him around, tbe force of tbe train, that broke bis left handhold and be fell on tbe track facing west. . . . He got bold of tbe band-bold, and, by tbe force of tbe train, it jerked him three or four steps, and by that time bis right band broke loose and be was still bolding with bis left band to tbe grabiron, which is straight up and down, when tbe force of tbe train threw him around. ... He got bold of tbe grabiron and also tbe handhold when be attempted to get on, and bis right band broke loose and be still held on with left band with tbe stick in bis band when it swung him around tbe end of tbe car and be let loose and it swung him around on tbe rail when be dropped down.

“Q. ■ About bow fast in your judgment, was that train running when Mr. Ray undertook to board it? A. About eight or ten miles an bour.

“Q. State whether or not be got bis feet, or either of them, on tbe step of tbe car during tbe time be fell off. A. No, be didn’t touch tbe car only with bis bands.

“Q. Where were bis feet from tbe time you saw him take bold of tbe grabiron? A. On tbe platform.

“Q. Prior to tbe time when tbe train started from tbe depot, what were you doing? A. Just standing doing nothing.”

Testimony was given regarding the duties of the rear brakeman, the tendency of which was to prove he was the “head brakeman,” or member of the train crew in authority in regard to the movements of the train and looking after the safety of passengers in situations which were no.t under the observation of the conductor. This testimony was given by the engineer:

“Q. State W'hether you did anything or performed any act that would cause a jerk? A. We did not.

“Q. Could the brakeman give the signal to stop the train if he wasn’t on the train and was on the platform, after that train has run anywhere' from 800 to 1000 feet, if the brakeman was standing on the platform, and how could he do it without getting on the train? A. He could not do it.

“Q. Is it your duty to be looking back after signals after you get your signal to go ahead? A. No.

“Q. What is your duty after you start out; I don’t mean while switching around in the yards, but after you get the signal to go to the next station, what do- you do? A. It is our duty to watch on ahead so that I hit nothing or any persons or anything.

“Q. State whether or not it is your duty then to be looking back? A. It is not.”

A written statement signed by plaintiff a short time subsequent to the accident, was introduced to contradict his testimony given on the stand. The tendency of the document was to prove the accident was due to plaintiff’s attempt to get on the train when it was moving too rapidly for the attempt to be prudent. Plaintiff testified the paper was signed while he was still ill from his injuries and had been taking morphine; and that it was neither read by nor to him. Several witnesses said plaintiff narrated the accident to them and laid it to his missing his footing when he tried to get on the caboose because the speed was too high. Plaintiff attempted to qualify as an expert witness in respect of shocks and jerks of freight trains by saying he had had “considerable experience” on snch trains, and had shipped stock over this road for seven years, not testifying how often he accompanied his stock.

The case has been exhaustively briefed from various points of view by counsel on both sides, but we think incidents which are unimportant have been dwelt on as tending to establish or refute the company’s liability. The churlishness shown by the brakeman in not informing plaintiff when the train would leave in response to an inquiry, the omission of the conductor who saw plaintiff waiting on the platform to warn the latter before starting, and what the brakeman said to him about getting on the caboose as it moved past the platform, which is treated as an invitation to get on and as an assurance that he might safely do so, and failure to stop for plaintiff, are all drawn into the argument as facts going to show liability. For defendant, plaintiff’s loitering about the platform after he had attended to his cattle, instead of getting on the caboose before the train moved, as he might have done, is said to show he was injured through his own fault, and the statement of the brakeman is argued to have been no more than a license to him to take the risk of boarding the caboose. -Those circumstances strike us as immaterial because, according to plaintiff’s own narrative, which we accept as true for the purposes of the appeal, he succeeded in getting on the steps of the caboose in safety. He testified he was thrown to the ground after he had grasped the handrods at the back platform with either hand, had set both feet on the bottom step and was in the act of putting one foot on the second step; that at this moment a jerk of the train occurred and threw him overboard. It follows the proximate cause of the accident was this jerk; not an antecedent act of negligence by either defendant’s employees or plaintiff; and in instructions given for defendant, the court below so charged and conditioned the right to recover on findings of negligent handling of the train by the engineer and of due care on tbe part of plaintiff. Tbis accorded with tbe position taken by counsel for plaintiff as regards bis alleged contributory negligence; for they say if be attempted to board tbe train when it was rash to do so, or made tbe attempt in a careless way, these circumstances could not have contributed to bis fall since be succeeded in getting on safely and was afterwards thrown off. By tbe like reasoning it follows tbe antecedent acts of negligence, if any such occurred, on tbe part of defendant’s train crew, were not tbe legal cause of the casualty. Therefore tbe question for decision is whether tbe jerk which precipitated plaintiff to tbe ground is attributable proximately to any negligence of defendant. Tbe evidence relied on for tbis purpose was twofold: The testimony of plaintiff himself that tbe jerk was an unusual and extraordinary one; and tbe supposed effect of it in burling him to tbe ground. A careful study of the entire record, in tbe light of precedents, has satisfied us there was no substantial evidence tbe jerk was imputable to defendant’s negligence. Tbe law governing tbe liability of railroad companies for an injury to a passenger on a freight train by oscillations of tbe train has been expounded in numerous decisions in tbis and other jurisdictions. A person who takes passage on that kind of train, assumes the risk of injury from such jars and movements as are incident to its operation, if its parts are well constructed and in good repair and it is properly operated on a safe track; but does not assume tbe risk of injury from faults in either of those matters, or perhaps kindred ones which an experienced railway man could enumerate but we cannot. [Hedrick v. Railroad, 195 Mo. 104, 93 S. W. 268.] Tbe jerk said to have thrown plaintiff off bis balance bad no other noticeable consequence; it was not in evidence any article on the train or caboose was misplaced nor any person but plaintiff disturbed. Tbe rear brakeman, who was standing on tbe rear platform, was not thrown off nor violently jostled. We are pointed to tbe fact that the hold of plaintiff’s hands on the rods was loosened by the jerk; but the degree of violence required to do this would depend on how tightly he was clasping the rods and also the firmness of his position on his feet. Under some circumstances a slight jar of a train will unbalance a person. It is in proof that while a train is leaving a station, the power of the steam is applied gradually, instead of being turned on at once in full force, and, indeed, the petition in the present case alleges the train was moving at an “accelerating speed.” Taking into consideration the oscillations and jerks commonly and necessarily incident to the movement of a freight train and that this train was getting under full speed, we hold the mere fact that plaintiff was thrown off by a jerk did not warrant the conclusion of defective track or train appliances, or negligent operation; in other words, the doctrine of res ipsa loquitur does not apply. This is the necessary result of the cases cited infra, wherein it was held the evidence for the plaintiffs did not entitle them to a decision by the jury. This plaintiff said the jerk was an unusual and extraordinary one, but the cases hold such expressions of opinion by a nonexpert witness are not of probative value; and plaintiff no more qualified as an expert than did the witnesses in the following cases, who gave testimony tending to prove the shocks in issue were of unusual violence. Indeed his qualifications were inferior to some of said witnesses whose testimony was rejected. [Gufify v. Railroad, 53 Mo. App. 156; Hawk v. Railroad, 130 Mo. App. 658, 108 S. W. 1119; Hedrick v. Railroad, 195 Mo. 104, 93 S. W. 268; Wait v. Railroad, 165 Mo. 612, 65 S. W. 1028.] We are controlled by decisions of the Supreme Court and influenced by the decisions of other courts given in analogous cases, where the evidence relied on to show the accidents were occasioned by negligent jerks in the movement of freight and, other trains, was stronger than it is in the case at bar, and yet there was held to be no evidence tending to establish liability on the part of the railroad companies. Those authorities do not leave ns free to determine this case according to general doctrines and as though it were one of first impression; but our judgment approves the conclusions reached in said cases. Plaintiff’s counsel have endeavored to distinguish them from this one on the facts and show they ought not to control our decision; but the attempt has been unsuccessful. The record before us contains nothing to prove the train or caboose was in imperfect condition, the track out of order, or any physical defect existed which would cause an unusual jar or jerk of the train. That the engineer suddenly put on more steam power than was consistent with the safety of a passenger on the train, is to be deduced, if at all, from plaintiff’s testimony about the jerk being extraordinary and his fall. But, as we have said, such incidents, unaccompanied by results more indicative of violence, are not accepted as evidence from which to conclude an accident was not caused by a jar common on freight trains. If the engineer had known plaintiff had just got aboard and was standing on a step of the caboose, he might have been remiss in care for plaintiff’s safety in that situation, if the train was not handled more quietly than otherwise would have' been required, because a slighter jar would imperil plaintiff than when he was in the caboose. But there is nothing to show the engineer had reason to believe plaintiff was in such a situation. The rear brakeman knew he was, but- in the instant between the time plaintiff started to get on the caboose and his fall from it, the brakeman could not apprise the engineer at the other end of the train by signal or otherwise, that plaintiff was getting aboard. Plaintiff must have known these were the conditions he would have to face in getting on the caboose, as the brakeman told him its speed would not be slackened. Perusal of the following cases and others cited, supra, will demonstrate that no proof of negligence of the cogency required for submission to the jury, was adduced. [Hedrick v. Railroad, 195 Mo. 104, 93 S. W. 268; Hite v. Railroad, 130 Mo. 132, 31 S. W. 32; Portuchek v. Railroad, 101 Mo. App. 52, 74 S. W. 368; Erwin v. Railroad, 94 Mo. App. 289, 68 S. W. 88.] Many cases have been cited by plaintiff’s counsel and we have examined them, but find them inapt because the decisions were pronounced on facts unlike those before us. In some of them, the trainman or car man whose conduct caused the accident was regarded as culpably negligent because he knew of the perilous position of the injured party and the situation was such that he could have avoided it, either by stopping the train or car himself, or notifying the engineer or motorman to do so. [Murphy v. Railroad, 43 Mo. App. 43; Dougherty v. Railroad, 81 Mo. 325.] And in some cases the train had stopped or was stopping to let passengers off and the crew was presumed to be on the watch not to hurt them by a sudden lunge or shock. [Moorman v. Railroad, 105 Mo. App. 711, 76 S. W. 1089.] In others the shock of stopping, starting, running into a curve- or colliding with another car, caused such displacements of inanimate objects or persons in secure positions as to bespeak careless operation. [Condy v. Railroad, 85 Mo. 78; Dosey v. Railroad, 83 Mo. App. 528; Fullerton v. Railroad, 84 Mo. App. 498; Bussell v. Railroad, 125 Mo. App. 441, 102 S. W. 613; Mitchell v. Railroad, 132 Mo. App. 143, 112 S. W. 291.] In no precedent determined on facts like we have here was a verdict for damages approved; whereas on facts more favorable to recovery verdicts were set aside by the courts of last resort of this State.

The judgment is reversed.

All concur.