Chase v. Wabash Railroad, 156 Mo. App. 696

Chase v. Wabash Railroad

156 Mo. App. 696 | Mo. Ct. App. | 1911

ELLISON, J.

Plaintiff was one of defendant’s car inspectors and was injured while at work. He claimed that his injury was caused by defendant’s negligence and he brought this action to recover resulting damage. He recovered judgment in the trial court.

The negligence charged was maintaining a switch in the switch yards at the Union Station in Kansas City, Missouri, so near to defendant’s track that it was dangerous to servants in getting upon cars in the performance of their duties. The switch here involved, including the light, was about two feet eight inches high. On the night of the 15th of August, 1908, it became plaintiff’s duty to light up the cars intended for use. On this occasion he was filling the place of a negro who usually did that particular service. As a car was being brought up to the departing track at the station, plaintiff observed it was Mark and attempted to get in to light it. He got upon the step- and was opening the vestibule door when the heel of his foot struck the upright switch and he was thrown off' and his foot so crushed under the wheel of the car that amputation of a part of it became necessary. There was some testimony to show that a safe and proper distance for a switch stand from the rail was three feet and eight inches, and there was other evidence that this one was only three feet away.

*700The injury to plaintiff is not questioned. The dispute is as to how it occurred. Defendant says plaintiff was not standing on the step, but was holding to a hand rail of the car and running along by the side when he fell over the switch. Plaintiff has the advantage of the verdict, which is amply supported by the evidence which he detailed in his own behalf. But defendant, while conceding that a mere difference between witnesses is settled by the verdict, contends that the physical facts appearing in the case make plaintiff’s testimony impossible; and this is the principal question.

Plaintiff testified that he got upon the lower step with both feet, but that his feet were not entirely on that the front of his feet, back to and including the instep, were on, leaving the heels sticking over the step, and that as the car passed-the switch his. heel came in contact with it and he was thereby thrown off. At this point there intervenes measurements of height of the switch and of different parts of it, with and without the light; and its distance from the lower step of the car at its nearest and farthest points. There seems to have been great particularity as to this, getting down to eighths of inches. Defendant had three witnesses on this branch and they do not agree. The same car plaintiff Avas on was not used in defendant’s measurement, though it was of the same class. Furthermore, the car used by defendant was standing, while the one plaintiff fell from was moving and consequently swaying more or less, though of course more at the top than near the bottom.

If the cause .of the mishap depended alone on the position of immovable objects, or objects like some machinery which works with rigid and unvarying preciseness, it could very well be determined by minute measurements. But where a portion of the controlling factors forming a cause are not stationary, some of them being the movement of persons, it would, in many instances—this, we think, being one of them—be going *701too far to say that physical facts have not left a jury with any freedom of thought in determining the canse of the injury. The demurrer to the evidence was properly overruled. [Charlton v. Ry. Co., 200 Mo. 413; George v. Ry. Co., 225 Mo. 364; Tewksbury v. Street Ry. Co. (not yet officially reported), 134 S. W. 682.] In the latter case, besides cases from this state we collected several from other states bearing directly on the question. So far as the question of assumption of risk, which defendant invokes, may be connected with matters above stated, we think it disposed of by the late case of Jewell v. K. C. Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703.

Defendant offered to prove that no one had ever been injured at this switch prior to plaintiff. The trial’ court refused to permit the evidence to be heard. Former injuries have been allowed to be shown for some purposes, among them for the purpose of showing notice of the condition of the dángerous agency; or where the question was whether a certain object would produce a certain result, as in Golden v. Ry. Co., 84 Mo. App. 59. But to allow one accused of maintaining a dangerous structure, to exculpate himself by showing that up to the accusation on trial no one had suffered from it, would go far towards announcing' that one was never liable for the first injury; and it would introduce collateral issues in great confusion. [Kelley v. Parker-Washington Co., 107 Mo. App. 490; Mobile Ry. Co. v. Vallowe, 214 Ill. 124; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71; Marvin v. New Bedford, 158 Mass. 464; Railroad v. Kemper, 153 Ind. 618; Association of Trenton v. Giles, 33 N. J. L. 260.] In the last case it is said that: “The-reason for excluding all evidence of this character is, that, it would lead to the trial of a multitude of distinct issues, involving a profitless waste of the time of the-court, and tending to distract the attention of the jury from the real point in issue, without possessing the slightest force as proof of the matters of fact involved-The evidence excluded furnishes a forcible illustration *702of the necessity of the rule, to the trial of causes before juries. The offer was to show that ten thousand persons passed these premises in each year since the hall was erected, without accident. The admission of this evidence would carry with it. the right to cross-examine as to the circumstances under which each individual of the multitude passed, and the degree of caution and circumspection used by each; and, also, the right to introduce evidence of the dangers encountered, and by the exercise of superior vigilance, avoided, by each one of these individuals, together with evidence that some one or more of them had met with accidents at the place; in turn opening the way for evidence as to the degree of care exercised by such as had not been so fortunate as to escape; and when the parties, wearied in their endeavors to exhaust this vast field of investigation, rested the cause, the judge would have been compelled to direct the jury to determine whether or not the area was a nuisance, from the character of the footway, the situation of the area, with reference to it, and the means taken to guard against accident from its proximity to the sidewalk.”

We do not think there is any substantial ground of complaint of plaintiff’s instruction No. 2. When the whole instruction is read it only required of defendant the exercise of ordinary care.

We do not find that we would be authorized to disturb the judgment, and it is accordingly affirmed.

All concur.