Saeger v. Wabash Railroad

BROADDUS, P. J. This is a suit to recover damages for the alleged negligence of the defendant in the [286] operation of its passenger train whereby the plaintiff was damaged. The allegations of the petition are to the effect: That on the 27th day of December, 1906, the plaintiff took passage on the defendant’s train at Queen City for Julesburg; that when the train arrived at her destination it did not stop a reasonable length of time to allow plaintiff to alight in safety; but barely slowed up to a short-stop; and that while she was attempting to alight from the lower step of the platform of the car, the train was suddenly and violently started, throwing her off and onto the platform of the station. The plaintiff testified that the train just came to a stop; that she started to get down and the train started and she jumped; that the train was running when she got off; and that it was not running when she started to get off. To use her own language: “I started to get off. The train then started up suddenly. It was jump or fall and I jumped. I jumped toward the west. It turned my face toward the north. I lit on my feet, lit hard.” The plaintiff on being recalled was asked as follows: “What did you tell Dr. Mitchell as to whether or not the train stopped or not?” A. “I told him the train slowed up and just barely came to a stop. I thought it was going to stop and started to get off and it started too sudden.” The defendant’s testimony was to the effect that the train did not stop, and that it was moving when the plaintiff attempted to alight. On this issue the preponderance of the evidence was greatly in its favor. The plaintiff was severely injured. The judgment was for plaintiff from which defendant appealed. The defendant insists that plaintiff was not entitled to recover uder the allegation of her petition and her testimony, because the allegations of her petition is that the train had stopped at the station and that while she was attempting to alight the train suddenly started and threw her off, while her proof is that the [287] train did not stop bnt only slowed np, and that she jumped, and was not thrown off the car by its sudden starting. It is held, that, a plaintiff is not entitled to recover for injuries received while attempting to alight from a slowly moving train, upon an allegation in his pleading, that the car was suddenly started while he Avas in the act of alighting. [Bond v. Railroad, 110 Mo. App. 131; Mitchell v. Railroad, 108 Mo. App. 142.] A distinction however is made where it appears that the car Avas moving so sloAvly as not to enhance the danger attending an attempt to alight. [Green v. Railway, 122 Mo. App. 647, 99 S. W. 29.] Although plaintiff’s statement as to whether the train was at a stand when she started to alight or was moving was not as clear as it should have been, it is about as much so as we could reasonably expect from the ordinary female. They are as a rule indefinite under such circumstances. It is scarcely necessary to say that such is a matter of general knowledge. It was a matter for the jury to determine. And as they have found that the train did come to a stop, and moved when plaintiff was attempting to alight, the question is not open for revieAV in this court. It is, however, claimed that she was not injured by being thrown from the car, but that she jumped from it, therefore, she is not entitled to recover on the allegations of her petition that she was throAvn from the car. This is drawing a rather fine distinction. Plaintiff said: “It was jump or fall.” The plaintiff’s right of recoA-ery is predicated upon the negligence of defendant in starting the train while plaintiff was in the act of alighting, and it is immaterial whether she was throAvn off or that she jumped off for safety. [Nelson v. Railroad, 113 Mo. 702.] Dr. Mitchell was asked: “Would the jumping off the car produce the condition plaintiff is in.” The question was permissible. The answer was: “It cer [288] tainly might.” And whether the question was permissible or not, the answer was, therefore defendant was not prejudiced in any event.. The doctor was asked what effect the injury might have on plaintiff’s mind. The question was objected to because there was no allegation of injury to plaintiff’s mind. The allegation as to that matter, is that she suffered in mind and body. The objection was overruled and the witness permitted to testify. We believe the action of the court in that respect was proper. What has been said is an answer to most of the defendant’s objections to certain instructions given at the instance of the plaintiff. It is contended that the fourth instruction was vicious and prejudicial to defendant as it called special attention to the “pulling down sensation or prolapsus of the womb,” as there was no evidence of such sensation. As plaintiff’s injury resulted in prolapsus uteri it was not necessary to prove such sensation, for prolapsus is a pulling down of the womb, and it is to be assumed that the sensation naturally and necessarily follows. The cause was well tried. Affirmed. All concur.