Portuchek v. Wabash Railroad

REYBURN, J. On March 27, 1902, plaintiff, the wife of a farmer residing near Wellsville, Montgomery county, hoarded a car at Martinsburg in Audrain county, with two companions to be transported to Wells-ville. The car in which they traveled was a caboose attached to a freight train containing seventeen cars, fourteen of which were equipped with air brakes and three with hand brakes. The train regularly carried passengers, and plaintiff and her associates paid the usual and customary fare. Before reaching the depot at Wellsville, the train pulled into a side or passing track to permit a passenger train to pass; the switch at the junction of the main and side tracks is west of the Wellsville depot, and the train slackened its speed to enable its brakeman to throw the switch, pulled in on the side track, and again reduced its speed to allow the brakeman to return to the train. At this junction, Miss Motts, one of the plaintiff’s companions, had gone to the rear end of the caboose, and was standing with her hand on the door knob; Miss Steinmetz, plaintiff’s other companion was sitting with plaintiff who had her left hand on the hinged table fastened to the wall, which let down and extended across in front of the seat on which these two ladies were seated. As Miss Motts went to the rear door the conductor warned her to hold on as the car would give a jerk, and this warning was heard and recalled by Miss Motts and Miss Steinmetz but not by the plaintiff seated by her side. The train had not stopped but was moving slowly about two blocks from the depot, as plaintiff started to rise and the jolt 54 came, and she fell over the table, striking her left side against it and resumed her seat; Miss Motts who had been whirled aronnd by the jar and had taken a seat, then got off the car, but plaintiff and Miss Steinmetz remained seated until the train pulled up nearer the depot, and they got off where Miss Motts 'walked up and joined them, and together they went to the house of Miss Motts for dinner, and plaintiff returned to her own home during the afternoon. After the lapse of a week she consulted a physician two or three times, and he found injuries which he pronounced painful but not likely to impair her future health. A passenger on a freight train takes it with all the incidentals usual in the operation of such a train and submits himself to the inconveniences and assumes the perils ordinarily attending such method of transportation, but by consenting to carry passengers on such trains the responsibility of the railroad for their safe transportation is not restricted or lessened, and the same degree of care is required in the management of a freight train carrying passengers as in the operation of a train exclusively for passenger service. In the words of Justice SwayNU, “Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace car.” Indianapolis, etc., R. R. Co. v. Horst, 93 U. S. 296. But in the language, approved in many of the decisions upon the subject, from the composition of freight trains and the appliances necessary in their operation, there can not in the nature of things be the same immunity from peril in traveling by freight trains as there is by passenger trains. The primary purpose of such trains is the transportation of freight, and the equipments therefor are adapted to such business, and such of the traveling public as elect to journey by freight trains are charged with the knowledge of such fact. It is not to be expected that there will be the same exactness in drawing up to a station by a freight train, as by a train devoted to pasenger service, and precisely the same 55 degree of care exercised in the operation' of both may produce different results respecting the safety of the passengers, from the dangers inseparably connected with the conduct of one train and not with the other, and this the public presumably understands, and conducts itself accordingly, and such inherent hazards the passenger is held to assume in taking a freight train. Wait v. Railway, 165 Mo. 612; Chicago, etc., R. R. v. Arnol, 144 Ill. 201; Olds v. N. Y., etc., R. R., 172 Mass. 72; Erwin v. Railway, 94 Mo. App. 289. In the last ease it is aptly observed, that it is a matter of common knowledge, that jolting and jarring are incident to the operation of freight trains, and, therefore, negligence can not be inferred from the mere fact that an injury was suffered from a jar occasioned by the stopping of such train. There is no evidence in this case of any defects in defendant’s tracks, train or any of its appliances, nor any evidence tending to show any want of skill or care on the part of defendant’s employees in the management of its train or proof that the train was stopped in any improper or negligent manner. The plaintiff and her companions described the accident as being produced by a “very hard jolt” a “backward jolt very hard,” Miss Steinmetz characterizing it as “rather a hard jar” and “rather.a severe jolt,” and a former employee of defendant offered by plaintiff as an expert, stated that there always was more or less jerking in starting and stopping a freight train, but there was no evidence tending to establish that the shock which caused the fall was not a natural incident of the usual stopping of such train in proper manner. It follows that the court should have given the instruction asked on behalf of defendant at the close of plaintiff’s testimony and at the conclusion of all the evidence, that under the pleading and evidence the plaintiff was not entitled to recover, and the judgment is reversed. Bland, P. J., and Goode, J., concur.