118 Mo. App. 506 | Mo. Ct. App. | 1906
Plaintiff recovered a judgment in the sum of $2,000 on account of personal injuries alleged to have been received while he was in the service of defendant and the case is here on defendant’s appeal.
Defendant owns and operates stock yards at the live stock market in St. Joseph and in connection therewith owns and operates a terminal railroad yard which serves to connect the stock yards and adjacent packing plants with the various railroads that enter the city. This railroad yard was built by defendant and consists of many tracks and switches, which are used in the hauling of live stock to and from the pens, supplies to the stock yards and packing houses, and meat products from the latter concerns. A number of tracks connect the main yard with the packing plant of Swift & Co., and it is upon one of them, “track No. 10,” that plaintiff claims to have been injured. Plaintiff was in the service of defendant as a. switchman and at the time of the occurrence in question was one of the crew carried on switch engine “No. 3.” This engine weighed about forty-five tons. It had an extension boiler, had no pony trucks in front of the drivers and carried no- pilot. The front frame and buffer beam extended below and in front of the boiler end and rigidly suspended from the beam was a footboard one foot wide and long enough to extend
Plaintiff was the front brakeman in his crew. An order had been given for the engine to proceed some five hundred feet to a point on Swift’s track No. 10 and couple to a car standing there. Plaintiff stepped' on the footboard, the proper place for him to ride, and seated himself onthe projecting drawbar to rest while approaching the car. The engine, moving at the rate of about five miles per hour, was derailed on track “No. 10” at a switch frog, ran a few feet on the ties and stopped. Plaintiff either was thrown or jumped from his position to the ground and sustained no injury from leaving the engine. He claims that the concussion from the derailment produced the wounding of his scrotum by the hard substance upon which he was sitting and this resulted in the injury of which he complains.
The negligent acts of defendant, which plaintiff avers were the producing cause of the injury, are embraced in these allegations of the petition, “that defendant constructed that system of tracks in a negligent, improper, unsafe and dangerous manner, in this, to-wit; the ties used in the construction thereof were not sufficient in' number to properly and safely hold the number of rails laid, were of insufficient size and strength to withstand
Defendant asked, and the court refused it, an instruction in the nature of a demurrer to the evidence. It is argued by defendant with much earnestness and ability that this instruction should have been given and we will consider in their proper order the reasons advanced in support of this contention.
First, it is said that none of the specific acts of negligence charged in the petition is supported by proof. In looking at the case from the standpoint of a demurrer to the evidence, we will follow the well-recognized rule that requires us to draw every reasonable inference from the facts in evidence that may be indulged in favor of the cause of action asserted. There is a sharp conflict be
It appears from the evidence of plaintiff that the rails in use on the track where the derailment occurred and on the other tracks in the yard were of the same weight and were too light to carry properly the heavy traffic that passed over them. Trains of heavily ladened cars were frequently run over this track to and from the packing house. The frog where the engine left the track, made to fit rails of the size of those in use, was correspondingly light. The place in question was situated in a curve in the track and, without detailing the facts, it is sufficient to say it was shown that an insufficient number of ties was used and the rails were not properly spiked to insure the requisite stability. Further, it appears that the guardrail running parallel to the rail opposite the frog was light and after the accident found to.be loose though still attached to the ties by the spikes. The function of this rail was to hold the wheels of engines and cars to the proper course during the passage over the frog. That this guardrail was not securely spiked and braced to Avithstand the strain imposed upon it is manifest, if credit is to be given to plaintiff’s evidence.
Defendant argues that in view of the fact that this rail Avas crossed by the wheels of the engine in.its derailment, the loosened condition afterwards discovered is to be attributed rather to that strain than to a previous condition, but the fact remains that from the causes stated the guardrail was inherently weak and insufficient for the purposes of its use and the influence exerted by this defect in producing the deflection of the engine wheels Avas a fact for the consideration of the triers of fact. Moreover, under other facts before us, it is but
In addition, it appears that some.five or six ties at this place were so decayed as to be unfit for use. Defendant insists that as plaintiff on cross-examination was pressed into saying that he could see the ties were rotten from the track left in them by the engine wheels, the evidence must be disregarded because, first, the flanges of the wheels would indent sound ties and, second, the evidence relates only to ties that were ahead of the engine wheels when it left the track and whatever the condition of such ties may have been it could not have affected the security of the track at the place of derailment. We may concede that the engine’s wheels would have left their mark in sound ties crossed by them, but the character of an indentation made in a hard, sound tie might and no doubt would noticeably differ from that made in one softened by decay, and we understand plaintiff to mean that the presence of the marks made by the wheels enabled him to discover the actual condition of the wood. Plaintiff’s evidence does locate the six rotten ties in front of the place where the engine left the track, but under the same section of track —indeed, the guardrail, which was said to be seven feet long, had one end (that away from the approaching engine) resting on and attached to one of these ties and the other defective ties followed immediately beyond that end of the guardrail. Engines and cars approaching the guardrail and frog from the opposite direction had crossed these defective ties immediately before passing over the frog and it is reasonable to infer that the presence of so many rotten ties lessened the rigidity of that portion
We, therefore, have before us substantial evidence tending to show the existence of these defects, each of which could have contributed to the production of an unsafe condition of the track at the place in question: first, light rails, guardrails, and frog; second, a loose guardrail; third, an insufficient number of ties and consequent deficient attachment of rails and frog; and fourth, rotten ties in the track immediately adjoining that occupied by the frog and guardrail.
But defendant urges, that should the existence of these defects be conceded plaintiff has yet fallen short of making out a case to the jury because; first, it is not shown that any of them was the proximate cause of the derailment and, second, in stopping with the presentation of a number of causes any one of which could have produced the result without showing which one of them in fact did produce it, plaintiff presented a state of facts that drove the jury into the field of conjecture and speculation to arbitrarily and capriciously make a selection from a number of causes without having any substantial foundation for the conclusion that the one chosen was the real cause of the derailment. Plaintiff’s cause of action is grounded in negligence. He asserts that defendant was negligent in two respects, i. e., in the original construction of the track and in failing to maintain it in proper repair. He has specified in the petition the particular faults of which he complains and has produced evidence tending to show their existence. He has pleaded that these specific defects were the immediate cause of his injury. The burden he assumed, which the law will compel him to carry to the end, was twofold. It imposed upon him the task of proving an act of negligence charged in the petition and that such act was the direct cause of his injury. We have noted his performance of the first half of his task and it remains to be ascertained if he has fulfilled the remainder.
We have carefully examined the authorities cited by defendant as applicable to the question under consideration and find nothing in them at variance with the views expressed.' It may be said that when it appears that an injury may have resulted from oné of two or more causes, some attributable to the negligence of the defendant and the others not, the jury should not be left to conjecture and if the plaintiff fails to connect his injury with the negligent cause he cannot be permitted to recover under the mere supposition that the negligent act of which he complains might or could have caused the injury (Trigg
Another point made by defendant is that there is no evidence to show that defendant had either actual or constructive knowledge of the defects in the road a sufficient length of time before the injury to have enabled it to remedy them by the exercise of reasonable care. The rails, guardrail and frog had been there from the building of the track. The jury, as we have shown, was justified in saying that the guardrail had been loosened and made unsafe either from the unusual strain imposed on it in consequence of the defective track supported by the decayed ties or as a result of the prior derailments shown. It is a fair inference to say that the loosened condition of the guardrail contributed to all of the derailments and therefore must have existed for more than a month before the injury to plaintiff. The rotting of wood is a slow process and it was for the jury to say whether a reasonably careful inspection of the ties would have disclosed their condition. This point also must be ruled against the defendant and we conclude this branch of the case with the observation that plaintiff adduced substantial evidence tending to show that the derailment of the engine was the direct result of the negligence charged:
But it is insisted that plaintiff himself was guilty,
There is' some conflict even among witnesses for plaintiff relative to his position immediately before the derailment, but, adopting the facts most favorable to him, it appears that he was standing with one foot on the footboard, his buttock resting on the top surface of the drawbar behind the projecting head of the pin, and his other foot unsupported. In other words, he was sitting sidewise on the drawhead with one foot on the footboard to partially support his weight and with the head of the pin in front of his privates. When the front drivers left the track, the footboard dropped to the rails with a sudden jar and was bent upward and slided along the rails until the engine stopped. Plaintiff’s scrotum was pinched either from being caught between movable and fixed parts of the coupler or from being violently pressed against his leg or body either by the surface of the draw-bar or head of the pin. The projecting drawbar had the effect of bisecting the space that could be occupied by a person standing on the footboard and the surface of the drawbar afforded a convenient, inviting and relatively safe place to rest upon in the manner detailed. Plaintiff had no duty to perform while riding to the place where the coupling was to be made and it was a very natural thing for him to rest himself upon the drawbar and, unless we must say as a matter of law that his position certainly increased his risk of injury, the issue involved in his conduct is one of fact for the jury and not of law for the court.
Ordinary prudence requires a person to take into consideration the natural and probable consequences of a given act and not such as are remote, speculative or merely possible. It is not suggested, nor does it seem possible, that the position of plaintiff enhanced his risk except in case of some extraordinary happening such as the derailment of the engine. To agree with defendant’s contention would require us to assume, as indubitable, that plaintiff in the exercise of reasonable care should have considered when he took his position the contingency of a derailment or other disaster to the engine and should have anticipated that in such event it would be safer for him to stand on the footboard than to partially support himself on the drawbar. Taking into consideration the facts that the engine had but a short distance to go, was moving1 very slowly, had a clear and, to plaintiff’s observation, an apparently safe track ahead of it; we cannot say that in law plaintiff should have anticipated a derailment. The inherently dangerous nature of his employment required of him the vigilant use of his senses to discover possible dangers, but with none open to his observation he was justified in assuming that defendant had performed its duty to provide him with a reasonably safe track.
But could it be said that the hazardous nature of plaintiff’s employment required him to be in constant anticipation of danger from hidden or fortuitous causes as well as from those open to observation; we find no justification for a judicial pronouncement that his posi
Another argument advanced by defendant in support of its insistence that the demurrer to the evidence should have been sustained is that, under the facts dis-‘ closed by plaintiff, it was physically impossible for him to have sustained the injuries of which he complains in the manner claimed by him. These are.the facts detailed by plaintiff. The injury occurred between ten and eleven o’clock in the morning. Plaintiff experienced no pain at the time in the parts affected and did not know he had been hurt until perhaps an hour afterwards. He did immediately suffer from nausea of some severity, but made no complaint. When the engine was replaced on the track, he resumed work and worked through the day. His testicles began to pain him about an hour after the injury and the pain increased during the day. After he went home in the evening, he complained to his brother of his injury and both examined the injured parts. Two blue marks were discovered on opposite sides of the surface of the bag indicating that it had been severely pinched. The next day plaintiff reported for duty and worked after a fashion, but was greatly distressed by the pain which then was quite severe and continued to increase. He attempted to work during the next two days and then was compelled to cease on account of the injury. The day he quit work he consulted a physician, who directed him to go to bed and use hot flaxseed poultices. He remained under this doctor’s care
Defendant insists and in this is supported by the expert testimony it introduced, that it was utterly impossible for the testicle to have received an injury from a blow or from sudden compression of such severity that degeneration would follow without the accompaniment of intense pain and, since plaintiff admits he suffered no pain, we are asked to declare that he received no injury to his testicles from the negligence charged. Defendant argues and attempted to prove that plaintiff for a year or more preceding the occurrence in question had been afflicted with a venereal disease called gonorrhea, which he had neglected to have treated, and that this disease could have produced the condition discovered by Dr. Davis when he took charge of the case. The experts all agree that this disease, if neglected, may result in the destruction of the testicles, though the recorded instances are rare, but the weakness of defendant’s theory is that it is without any foundation in the facts disclosed by the evidence. The whole fabric is built upon an admission made by plaintiff that about one year before his injury the physician of the Burlington Relief Association had examined him and told him he had the disease. This was purely hearsay and devoid of probative value. Plaintiff vigorously denied that he had the disease or any of its characteristic symptoms. The physician, who first treated him, gave him no treatment for it and Dr. Davis, who testified, stated that he found no evidence of its presence. We are therefore confined to the consideration of a single question, is the inference that plaintiff’s injury resulted from a blow or bruise received during the derailment so plainly opposed to natural law as to compel its rejection?
It is well settled that courts will not stultify themselves by giving any heed to the testimony of witnesses or
Dr. Davis, a reputable and skilled physician, reached the conclusion from his knowledge of the case and its history that plaintiff’s condition was the direct-result of the injury of which he complains. His process of reasoning is rational and plausible. In his opinion, intense pain does usually accompany a violent injury to the testicles, but the presence of pain and its degree depend upon the physical peculiarities of the subject, the nature of the injury, and the circumstances under which it is received. In his science, he knew of five causes that could have produced the degeneration, cancer, syphilis, gonorrhea, tuberculosis and external injury. His investigations disclosed no evidence indicating the presence of any of the first four mentioned. By exclusion but one cause was left that could have produced the condition before him and this he accepted as the real cause. Although it seems extraordinary that plaintiff should have escaped immediate pain, we cannot say that this fact
The demurrer to the evidence was properly overruled.
Most of the objections made to the instruction given have been answered in what has been said. We have considered the others and find that no substantial error was committed. We have also carefully considered the questions presented relative to the admission of evidence andaré satisfied with the rulings made. It would unduly lengthen this opinion and serve no useful purpose to discuss all of the numerous objections urged. The case was fairly tried and the judgment is affirmed.