Gabriel v. St. Louis, Iron Mountain & Southern Railway Co. , 135 Mo. App. 222 ( 1909 )

GOODE, J.

(after stating the facts). — Defendant insists that plaintiff should have been nonsuited for two reasons: first, because the evidence failed to show defendant was guilty of any negligence and, second, because plaintiffs own evidence conclusively shows he was guilty (Of negligence which directly contributed to his injury. In regard to the first contention, we think defendant is clearly in error. The evidence is all one way that the impact of the cars was sudden, violent and unusual, in fact, that there was a collision which caused plaintiff’s injury. This evidence was undoubtedly sufficient to make a prima facie case. [Fullerton v. Railway Co., 84 Mo. App. 498.] In respect to plain-tiff’s contributory negligence, the evidence is also all one way that he is a traveling salesman and knew the train crew wTas engaged in switching at Paroquet and, from experience, must have known that in coupling freight cars there is necessarily more or less jar. Seats were provided for him and signs were posted in the car, notifying him of the danger of standing in the aisle. It is true, plaintiff testified he did not see these signs, and denied that the conductor warned him, but the signs were posted in conspicuous places in the car and plaintiff could have seen them, if he had looked, and it must be held that by providing a seat for plaintiff and posting warning signs in the car, the defendant company discharged its duty to warn him of the danger of standing in the aisle while the train was in motion, or when switching was being done, and plaintiff should be charged with notice of such danger. Indeed, from his experience as a traveling salesman, notice of the danger should be imputed- to him, though he was not warned by the signs, or by the conductor, and the case falls squarely within the ruling of the Supreme Court of Arkansas in the Krumm case. , In that case the evidence showed that Krumm was riding in a caboose of a freight train and was thrown down and injured by a collision between two parts of the train which had become uncoupled. At the time of his injury Krumm was standing near a cooler where he had gone to get a drink but stood there two or three minutes waiting for the water to cool before drinking. Warning notice not to stand while the train was in motion was posted in the caboose, but Krumm did not read it. The trial court nonsuited him and he appealed. Riddick, J., writing the opinion of the court, commenting on the evidence said: “The notice was headed by the words, ‘Warning Notice, Danger,’ in large capital letters, and was well calculated to attract attention. If, after having seen it, plaintiff failed to read it, the fault was his. The rule was a reasonable one, for it is well known that it is not practicable to operate freight trains without occasional jars and jerks calculated to throw down and injure careless and inexperienced persons standing in the car. This rule therefore was necessary to protect passengers on such cars from injury. . . . We are of the opinion that the circuit court was right in holding that the testimony of the plaintiff himself showred that his injury was due to his own carelessness. The judgment is, therefore, affirmed.”

We are indebted to the Hon. Charles C. Bland, formerly Presiding Judge of this court, for the foregoing statement of facts and law. It is insisted the rules of law governing the defense of contributory negligence in our state ought to be applied to the determination of the controversy, and not the rules in force in Arkansas where the accident happened, if the law is different in the two states. This proposition is unsound; for in Root v. Railway, 195 Mo. 348, our Supreme Court held to the contrary, saying it was settled law that in a transitory common law action, brought in a State other than where the injury happened, the interpretation of the common law obtaining in the State where the action accrued will govern; that if a litigant had no case in the courts of the State where he was injured, he had none elsewhere; citing numerous authorities. As the decision of the Supreme Court of Arkansas was rendered on facts not materially different from those involved in the' case at bar, and was adverse to a recovery on such facts, the judgment must be reversed. It is so ordered.

Nortoni, J., concurs; Reynolds, J., not sitting.