212 Mo. 589 | Mo. | 1908
— This suit was instituted to recover damages for personal injuries received by plaintiff through the alleged negligence of the defendant. The suit was brought in Scott county and taken on change of venue to Dunklin county, where a trial was had before the 'court and á jury, which resulted in a verdict and judgment for the plaintiff for the sum of ten thousand dollars. After an unsuccessful move for a new trial and in arrest of judgment, the defendant duly appealed to this court.
As the sufficiency of the petition is assailed, it becomes necessary to set it out in this statement, which, after omitting the formal parts, is as follows:
“That on the 8th day of November, 1901, and the day following, he was in the employ of defendant railroad company as an engineer and had charge of engine No. 4 on its said road, which he had been directed and
Defendant’s amended answer contains a general denial and then proceeds as follows:
“2. For another and further answer defendant avers that plaintiff never was in defendant’s service or employ in any capacity whatever, and that at the time mentioned in his petition plaintiff was merely a passenger on board defendant’s freight train, with instructions from defendant’s conductor and crew in charge of said freight train to stay in the caboose at the end of said train, and that such injuries as plaintiff received, if any, were caused solely by his own reckless conduct and negligence contributing directly thereto, in this, to-wit, that he left said caboose at nighttime and went to and extended his arm under an engine coupled in said freight train while cars were being switched from the side tracks and coupled with said freight train at Morley station on defendant’s railroad, and thus received said injuries, all of which he did in violation of the said instructions of said train crew and without any persons having* any notice or warning of Ms dangerous and reckless conduct or his said dangerous position. Wherefore, defendant again prays for judgment and that it may be dismissed with its costs.
“For another and further answer defendant says plaintiff never was employed by defendant as a locomotive engineer or in any other capacity, and avers that at the time mentioned in his petition plaintiff was in the service and employ of the St. Louis, Kennett & Southern Railroad Company, owning and operating a railroad separate and distinct from defendant’s railroad, and that said St. Louis, Kennett & Southern
The facts of the case are few and practically undisputed, and are as follows:
On November 8th, 1901, Crow was working on a Houck’s Missouri & Arkansas engine south of More-house. On that date his conductor Hardy told him that Mr. Louis Houck, general manager, had ordered the engine taken to the Cape, because the flues had given out and the engine wasn’t able to pull a full train. He was on his way to the Cape pulling a car of steel and Houck’s Missouri & Arkansas engine No. 7, which was also disabled and was in charge of Barney Gill, foreman of the Houck’s Missouri & Arkansas shops at Cape Girardeau. The flues sprung an extra leak and the
About six o ’clock the local came along in charge of Tom Gill as conductor, picked up^ the two engines and car of steel, placing them at the rear of the train in front of the caboose. There were about twelve freight cars between the engine pulling the train and the dead engines. They proceeded on their way to Cape Girardeau, Crow and his fireman riding in the caboose with the train crew. "When the engine whistled for Morley, Crow inquired of the conductor the name of the station, and upon learning it asked if he would have time to look the engines over. Gill told him that they had no business at Morley except to unload one box and that he would have plenty of time. When the train stopped all in the caboose got out, Crow taking a lantern walked up along side of the train to the dead engines, accompanied by his fireman and Conductor Gill. Crow proceeded to oil engine 7 while the fireman oiled one side of No. 4, Gill slowly walking away towards the head of the train. After oiling No. 7 and one side of No. 4, Crow discovered a hot engine truck and found that a cellar bolt on the right side of the forward truck had slipped out, the cellar dropping down at one side and losing the packing. The “cellar” on a truck is a receptacle placed underneath the bearing of the axle to hold oil and waste for the purpose of keeping the bearing properly oiled while in motion. If the cellar fails to perform its office the bearing becomes overheated and the “hot box” condition results. The steel of the axle is liable to become crystallized and to break under the strain of friction and the weight of the engine. All that is required is to slip a bolt of iron through the
The testimony on the part of the defendant showed that the rules of railroads required blue signals, a flag by day and a lantern by night, to be put out, front and rear, when a car is being repaired; but all the witnesses admitted that such rule applied only to a car set out on a side track in the yards and not to a train in operation upon the main line. Further it was shown that there were no blue lanterns on the trains. The defendant’s witnesses, Gill and Lavey, and the fireman on the engine, stated that they did not see Crow’s stop signal, but Gill and Lavey had their backs towards Crow. Gill admitted that he had given Crow permission to look his engine over, that he walked up with him to the dead engine and was only two or three cars ahead when the injury occurred.
At the close of plaintiff’s evidence, and again at the conclusion of all the evidence in the case, the defendant asked an instruction in the nature of a demurrer to the evidence, each of which was by the court refused, and to the action xof the court in so refusing them defendant duly excepted.
After overruling defendant’s said demurrers, the court instructed the jury for the plaintiff as follows:
“1. The court instructs the jury that if you find from the evidence that plaintiff was. employed by the
“2. You are further instructed that, although you
“3. The court instructs the jury that if you find the issues for the plaintiff, you should assess his damages at such sum, not exceeding twenty-five thousand dollars, as from the evidence you may find and believe will be a fair compensation to him for the injuries he is shown by the evidence to have sustained, and that, in estimating such damages, you should take into consideration the physical pain and mental anguish occasioned by his injuries; the fact, if you so find, that his injuries are permanent, his physical deformity, and any diminution or impairment of his earning capacity, if any, which you may find from the evidence has been occasioned by his injuries.”
Defendant objected and excepted to the giving of the above instructions and each of them.
The court gave the following instructions for defendant :
“A. In determining whether the defendant’s
“B. The jury are instructed that the plaintiff Crow was bound to exercise such care and prudence as might reasonably be expected of a man of his age and capacity under similar circumstances, and that the degree of care and prudence in avoiding danger is to be determined from the age and experience of the plaintiff in railroading; and if the jury believe from the evidence that plaintiff was a man of mature years, and an experienced locomotive engineer, they may take that fact into consideration in considering the question of negligence or carelessness on the part of said plaintiff.
“C. Negligence as used in these instructions means a want of such reasonable care as a person of ordinary prudence would be expected to exercise under all the existing circumstances in view of the probable danger of injury.
“D. If you find from the evidence that plaintiff began the work of inserting a cellar bolt in the truck of the disabled engine, and gave the train crew no warning of his position except to ask and receive from the conductor permission to look over, or to look around the engine, then the plaintiff did not exercise such reasonable care to avoid injury as a person of ordinary prudence should have exercised under similar circumstances, and he was guilty of negligence which
“E. If you believe from the evidence that plaintiff was himself guilty of any negligence that contributed directly to the injury of which he complains, then he is not entitled to recover, even though you may further find that there was also negligence on the part of defendant’s train crew.”
The court refused the following instructions asked by defendant, to which refusal as to all and each defendant excepted:
“F. Although the jury may find and believe from the evidence that the plaintiff Crow was struck and injured by a train of defendant’s cars, yet that does not authorize the jury to find a verdict for the plaintiff in this action; and unless it has been proved to the satisfaction of the jury that, after said plaintiff had got under his engine, his dangerous situation was discovered by those in charge of the train, or that they could have seen it by the exercise of ordinary care and watchfulness, and have stopped the cars in time to have prevented the injury, then the finding must be for the defendant.
“Gr. You are further instructed that before you can return a verdict in this cause for the plaintiff you must find and believe from the evidence that at the time of receiving the injury complained of in his petition plaintiff was in defendant’s employ, and that when defendant’s train stopped at Morley station defendant’s trainmen negligently backed cars against a disabled engine, coupled into said train, on which engine plaintiff was at work, and that such negligence on the part of defendant’s trainmen was the sole and direct cause of the injury to plaintiff, and that plaintiff was not himself guilty of any negligence that contributed directly to the injury. If plaintiff was guilty of any negligence contributing directly to' cause the
I. The first assignment of error presented by appellant relates to the action of the court in admitting any evidence under the petition. It is the contention of the appellant that the petition does not state facts sufficient to constitute a cause of action against it.
The petition alleges in substance that when the train reached Morley, the conductor asked plaintiff if he desired to look Ms engine over, and, upon being told that he would if he had time, was informed by the conductor that he would have all the time he wanted, and that thereupon he descended from the caboose and began an examination thereof; that upon discovering that one of the bolts of the engine truck cellar had been lost, he undertook to remedy the defect, relying upon the assurance of the conductor of said train that he would have plenty of time. And that in order to make the repairs he took a position on the end of the ties behind, the engine truck and had his arms extended underneath the engine in the act of holding up the engine truck cellar with a hammer handle while an assistant was inserting the bolt, when suddenly, and without warning to him, defendant negligently caused a number of cars to be violently forced back against the train in which his engine was standing, thereby causing the wheels of his engine truck to be run back rapidly and pass over his arm, and thereby inflicted the injuries complained of.
It is the contention of the appellant that the permission given by the conductor to the respondent to look over the engine was no license or authority for
We fully concur in this contention of appellant. There was nothing in the words of the conductor which could possibly be tortured into a permission to go under the engine to make repairs, which perchance might be discovered upon an examination.
There is nothing in the petition which shows that the servants in charge of the train had any reason whatever to apprehend that respondent would assume a place of danger by inspecting the engine, or that he was in a place of danger at the time the cars were pushed back against those attached to the engine under which he was working.
To assume such a dangerous position without notifying the trainmen of his intention to do so can be denominated nothing less than gross negligence of the most reckless character. Any man of ordinary prudence, possessing due regard for his own safety, would have gone when he discovered the defective truck cellar to the conductor or other proper person in charge of the train and notified him of the trouble, and asked permission to go under the engine to1 make the necessary repairs, or have notified him of his intention of doing so. Having failed to state either of those facts in his petition, we are of the opinion that it shows upon its face that respondent was guilty of such contributory negligence that he cannot recover.
We do not understand learned counsel for respondent to really controvert the correctness of the conclusions above stated; but to insist that when the conductor gave respondent permission to look over his engine such permission when given and accepted by
If it be true' that the granting of such permission also carries with it permission to make the necessary repairs that might be discovered and that such was the understanding of the parties giving and accepting the permission, then such facts should have been alleged in the petition; and having failed to do so, we have no hesitancy in holding that it failed to state a cause of action. But since counsel for respondent proceeded upon the theory that he could make that proof without pleading the facts and seems to have some merit in his case, we will reverse the judgment and remand the cause with direction to the circuit court to permit respondent, if he sees proper, to amend his petition by alleging the matters before suggested, and grant him another trial.
Ordinarily this would fully dispose of the case in this court, but, as the cause must be retried, we deem it proper to pass upon some additional questions presented by the record, for the reason that they will be presented again to the trial court for decision; and by expressing our views upon those questions at this time, it may serve to prevent another appeal of this case to this court.
II. The next insistence of the appellant is that the action of the court in refusing its instruction in the nature of a demurrer to respondent’s evidence was reversible error.
This contention is based upon the fact the petition alleges that he was in the employ of the Houck’s Missouri & Arkansas Railway Company and was injured through the negligence of its agents and servants, while the evidence showed that he was in the
In the light of all this evidence, we are unwilling to declare as a matter of law that the respondent at the time he was injured was not an employee of the appellant but was an employee' of the St. Louis, Kennett & Southern Railroad Company. "While the evidence is somewhat meager and unsatisfactory upon
In this same connection appellant also insists that the court should have sustained its demurrer to the evidence, for the reason that respondent’s evidence showed he was .guilty of such contributory negligence as should preclude a recovery in this case.
This question is closely related to the question of pleading considered in the first paragraph of this opinion, and much of what is there said applies with equal force to the question now under consideration; but, as there shown, the defective condition of the pleadings upon this question prevented its proper presentation to the court and jury, and for that reason we thought that the judgment should be reversed and the cause remanded for a new trial, in order that this question might be more fully and properly presented by the pleadings and the evidence.
Under the present state of the pleadings, of course the demurrer to the evidence should have been sustained, but we cannot in advance anticipate fully what the evidence will be upon another trial after the pleadings have been amended.
III. The action of the court in admitting evidence over appellant’s objections is bitterly assailed.
Respondent introduced evidence tending to prove that all the roads mentioned constituted one entire railway system, known as the “Houck System,” with Mr. Louis Houck at its head, and general manager; the relation each of said roads bore to each other; what charge and .control Louis Houck and other officers of the various roads had over respondent; the relation the repair shops bore to each company and to
IY. Appellant lodges many objections against the instructions given by the court in behalf of the respondent.
Instruction numbered one given.for respondent is objected to for the reason that it assumed certain matters stated therein to be true, while, as a matter of fact, they were undisputed. We are of the opinion that the instruction is erroneous, for the reasons stated; and at the next trial the instruction should be so amended as to submit those matters to the jury to pass upon, and not assume them to be true. [Thompson v. Botts, 8 Mo. 710; Wilkerson v. Eilers, 114 Mo. 245.]
Instruction numbered two given for respondent is clearly erroneous. It authorized the jury to find for respondent even though they found he was not an employee of appellant at the time he was injured. That was a clear departure from the issues presented by the petition.. It states that respondent was an employee of appellant at that time, while the instruction authorizes a recovery even though that fact was not true. That was reversible error. [Milliken v. Commission Co., 202 Mo. l. c. 654.]
VI. As the judgment must be reversed and the cause remanded for the reasons before stated, it becomes unnecessary to pass upon the question regarding the newly-discovered evidence set up in the affidavits in support of the motion for a new trial.
The judgment is reversed and the cause remanded for a new trial in conformity to the views herein expressed.