87 Mo. 588 | Mo. | 1885
This cause is before us on defendant’s appeal from a judgment rendered for plaintiff by the circuit court of Pettis county, and as the first and principal point presented is as to the sufficiency of the petition, it is here inserted, and, omitting the formal part of it, it is as follows:
“Plaintiff, for cause of action against the said defendant, states that on the said seventeenth day of November, 1879, he was in the .employ of the defendant, in its yards at Sedalia, in said county and state. The duties of his employment were to ride cars, catch them up, couple them, etc., when trains arrived at said yards! That on the said seventeenth day of November, 1879, in the morning, while making up a freight train, and with-cut any fault or negligence on his part, in attempting to couple together two cars in making up said train, his arm was caught in the coupling apparatus and befcvveen the said two cars, whereby the elbow was crushed and*592 injured, the ulna broken, the flesh and muscles of said arm mangled and bruised, causing him great pain and agony, and most excruciating suffering for several months, causing paralysis of said arm, and permanently disabling the same so that he is now, and ever will be, unable to use said arm, and was, and is, thereby compelled to abandon forever his ordinary avocations.
“Plaintiff states that the cause of the injury aforesaid was the carelessness and negligence of the said defendant in failing, neglecting and refusing to provide plaintiff with safe and proper appliances, and reasonably secure and safe appliances and machinery with which to perform the duties of his employment. That on the occasion of the injury, the defendant, not regarding its duties, unlawfully, negligently, and knowingly, required plaintiff to couple what was known as a “Baldwin locomotive car, ” to a “ Missouri Pacific freight car.” That at the time plaintiff was required to make the coupling of said two cars, said cars, known as the “Baldwin locomotive cars,” had generally been abandoned on railroads-■ as dangerous to be used and coupled with other cars of modern construction, and especially had they long been unused in connection with Missouri Pacific cars, and the one used at the time of plaintiff’s injury was dangerous to the life and limbs of those whose duty it was to couple it with a Missouri Pacific car, because of the want of drawheads properly constructed, there being no dravheads and timbers, deadwoods, etc., to conform to the construction of those on the Missouri Pacific car, and on that account when the two cars came together, plaintiff’s arm was caught and injured as afpresaid. Plaintiff states' that the said injuries were occasioned by reason of the negligent, careless and unlawful act of defendant in permitting and requiring plaintiff to perform the duties of his employment with the dangerous and unsafe and im- ■ proper appliances and machinery aforesaid. Wherefore, plaintiff says, by reason of the premises, he was, and is,*593 damaged in the sum of ten thousand dollars, for which he asks judgment.”
I do not understand counsel for appellant as controverting that if defendant furnished a car to be coupled by plaintiff, which it knew, or might have known, by the exercise of ordinary care, was not reasonably safe, but was unusually dangerous because of the construction of its drawheads, and that plaintiff, without fault on his part, and in ignorance of its dangerous character, was injured by reason thereof, that he could recover damages for such injury., But the contention is that the cáse stated in the petition does not come within the operation of the above principle, and the first specific objection made to the petition is that it does not aver either that plaintiff did not know, or could not have known, by the exercise of ordinary care, the dangerous and defective construction of the car, and that for the lack of such averment, it is fatally defective. It may be stated as a well recognized rule of pleading, that a plaintiff need only state in his petition what he is bound to prove to make out his case, to which rule efficacy was given in the case of State v. Edmundson, 64 Mo. 398. Shearman and Redfield, in treating of the liability of masters to servants, in section 99, page 128, state the rale thus: “In actions brought by servants against their masters, the burden of proof as to the master’s knowledge, or culpability in lacking knowledge of the defect which led to the injury, whether in the character of a fellow servant, or in the quality of materials used, rests upon the plaintiff. But the plaintiff having proved the fault of the master in this respect, the burden of proving that the plaintiff also knew of such' defect, and commenced or continued his service with such knowledge, rests upon the defendant. This fact being proved, it is then for theplaintiff to show, if he can, that defendant induced him. to continue the work by promising to remedy the defect.”
It is further insisted that the petition is insufficient in that it does not aver that defendant either knew, or might, by the exercise of ordinary care, have known, the •defective and dangerous construction of the car that plaintiff was required to couple. If the petition contains no averment equivalent to the one above noted, the ■objection made to its sufficiency would be well taken. That it does contain equivalent averments, we think is clear. The petition alleges that the cause of the injury received by plaintiff without his fault, was the result of •carelessness and negligence of defendant in failing and neglecting to provide him with reasonably safe and secure appliances with which to perform duties of his employment, and then proceeds to state wherein the ■car he was required to couple was defective. This form of pleading is sufficient, and has the sanction of Bliss on Code Pleading, where, in section 212, in treating of the distinction in pleading fraud and negligence, it is •said: “To charge fraud, it is not enough to say that the party fraudulently procured, or did this or that, or
So, in the case of Mack v. St. L., K. C. & N. R. R. Co., 77 Mo. 233, it is held, tliat in an action founded on negligence, it is not necessary for the plaintiff, in his petition, to set out the facts constituting the negligence. An allegation specifying the act, the doing of which caused the injury, and averring generally that it was negligently and carelessly done, will suffice. See, also, Chubbuck v. H. & St. Joe R. R. Co., 77 Mo. 593. To sustain the allegation in the petition that defendant negligently furnished a car that was defective and unsafe, the plaintiff would be required to prove the fact that the car was unsafe; and, also, the fact that defendant either knew, or by ordinary care, might have known of the defect, because without such proof the charge of negligence would be unsustained. The charge that defendant negligently furnished a defective and unsafe car, stating wherein it was defective, is as broad as if the charge had been that the defendant furnished such car, which it either knew, or might have known by due care, was defective and unsafe. In either case he would have tó make the same proof.
On the trial, evidence was received, over defendant’s
The defendant offered no evidence, and asked no instructions. The court gave several instructions for plaintiff, and one of its own motion, to which defendant lias interposed a general objection in his brief, without pointing out wherein they are claimed to be erroneous. -It is sufficient to say of the instructions given for plaintiff, that they in substance and effect told the jury that before they could find for plaintiff they must believe, -from"the evidence,-that plaintiff was in the employ of defendant, and that without any negligence on his part, he was injured while coupling a Baldwin locomotive car
• The instructions fairly put the case to the jury, and' we'-find nothing in the record justifying an interference with the judgment, which is hereby affirmed.