148 Mo. App. 475 | Mo. Ct. App. | 1910
This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered and defendant appeals.
It appears plaintiff was one of a party of six engaged in defendant’s service as bridge carpenters. On the day of his injury, plaintiff, together with his companions, had been working adjacent to the city of Edina. Defendant had furnished the bridgemen three cars to be used in connection with their duties. One of these cars was an ordinary freight car containing bunks for sleeping purposes, cooking utensils, tables, chairs, etc., and was known as the “bunk” and “dining” car. Another was a freight car on Avhich they transported materials necessary to the repair of bridges. The third was what is known as a flat car and was used by plaintiff and his companions as a conveyance for their tools and some supplies.
It becoming necessary for the' party to remove from Edina to the town of Brashear, the three cars mentioned Avere included in one of defendant’s trains for that purpose. As the two towns mentioned are situate a short distance apart, plaintiff and two of his companions took passage on the flat car used by them as a conveyance for their tools instead of going into the other known as
Immediately upon leaving the city of Edina to the westward is a heavy grade on defendant’s road. After passing the summit of this, the train descends another considerable grade into a swale on the roadbed and then comes another grade to the westward. The three cars of the bridgemen were placed in the train near the rear end thereof and, as stated, plaintiff, in company with two of his companions, was standing on the flat car which they used as a conveyance for their tools and a few supplies. The plaintiff stood a few feet from the forward end of this car as the train progressed westward and his fellow workman, Montcrief, was close by his side. After passing over the summit of the first grade west of Edina, the train descended the incline to the swale of the track with considerable rapidity, and upon the forward part thereof ascending the next grade to the west it became uncoupled between the two locomotives. Just where or how this uncoupling occurred does not appear but it is said in the proof that it was between the two locomotives which, as before stated, Avere separated only by a freight car. The entire train as far back as the cars occupied by the bridgemen was equipped with airbrakes so that they worked automatically upon the occurrence of the uncoupling mentioned. It appears that instantly upon the forward locomotive becoming uncoupled from the remainder of the train the brakes were automatically set on all of the cars back to the one on which plaintiff and his companion were riding. Of course, this produced a sudden and
Besides containing a general allegation of negligence in operating the train, the petition contains two specific allegations as to the negligent acts relied upon. The case was here on a former appeal and is reported Gibler v. Q. O. & K. C. R. Co., 129 Mo. App. 98, 107 S. W. 1021. The petition before us on the former appeal was in part the same as the one now in judgment except for the fact it contained an allegation to the effect the airbrakes were defective and unsafe. After the case was remanded, the present amended petition was filed and the averments touching the matter of defective and unsafe airbrakes omitted. Otherwise the pleading predicates upon the same grounds of negligence, as theretofore and a general allegation of negligence is included. In the present petition it is averred, first, substantially that defendant was negligent in recklessly, wantonly, carelessly and negligently running its train at a high and dangerous rate of speed. It may be said of this allegation, however, that although it abundantly appears the train was being operated at from twenty to twenty-five miles per hour, there is not a scintilla of proof that such was a dangerous rate of speed. Indeed, this allegation of negligence is not only unproven but was aban
When the cause was here on the former appeal, the court entertained some doubt as to whether or npt plaintiff has shown a prima facie right of recovery. As before stated, the petition in judgment then pleaded several specific acts of negligence. Upon carefully examining the proof, it was ruled wholly insufficient on all of the specifications but one and that was the charge that the engineers carelessly, etc., permitted the train to become uncoupled. It appeared that one witness, Forrester, testified on that trial the engineers handled the train very roughly. On this statement of one witness, a mere scrap of testimony, considered together with the circumstances of an exceedingly long train
It is to be inferred from subsequent conduct of counsel in amending their petition so as to include a general allegation of negligence that they sought to so form the pleadings as to invoke the doctrine of res ipsa loquitur. Such was a proper course to pursue and would no doubt have prevailed, had the averments of specific negligent acts been omitted from the amended petition. [Briscoe v. Met. Street Ry. Co., 222 Mo. 104, 120 S. W. 1162.] The inference that counsel included the general allegation of negligence in the amended petition with a purpose to invoke the doctrine of presumptive negligence is re-enforced from the fact that it appears they wholly omitted to introduce any evidence whatever on the present trial tending to show the specific negligent acts charged against the engineers or those in charge of the train and now rely upon the doctrine of res ipsa loquitur. Indeed, it is argued here that as the present petition contains a general allegation of negligence in addition to the specific charges mentioned plaintiff was not required to prove more than the fact of the accident and the circumstances of the case to make a prima facie showing of liability. And it is said such is the law of this case as determined on the former appeal. No such question was presented when the case was here before and no such judgment was given. The case then before the court was one predicated upon three charges of specific negligence and
There is no proof in tbe present record tending to establish any specific act of negligence against tbe engineers or any other person for that matter. The few words of tbe one witness to tbe effect that tbe engineers bandied tbe train very roughly, which, together with tbe circumstances of tbe long train and two locomotives, we determined to be sufficient prima facie on tbe prior appeal, are not to be found in tbe testimony given at tbe last trial. There is testimony to tbe effect that tbe train became uncoupled as detailed above and that this occasioned a sudden and violent shock which precipitated plaintiff forward to bis injury. But this testimony in no manner tends to support tbe specific charge that tbe engineers were remiss in their duty so as to occasion tbe uncoupling and no specific charge is laid against any other of defendant’s agents. In a manner, plaintiff concedes tbe insufficiency of tbe testimony to establish tbe specific negligence alleged and seems to
It therefore appears that the mere fact of the relation of master and servant furnishes no valid reason for denying the application of the doctrine of presumptive negligence in this case. Both the Kansas City Court of Appeals and this court have heretofore given judgment to the effect that the relation of master and servant alone does not exclude the doctrine as to railroad employees in a proper case. See Shuler v. O. K. C. & E. Ry. Co., 87 Mo. App. 618; St. Clair v. St. Louis, etc., R. Co., 122 Mo. App. 519, 99 S. W. 775. Furthermore, our Supreme Court applied the doctrine as between master and servant in a case not within the influence of our fellow-servant statute, when the fact of the sudden starting of the machine which occasioned the injury indicated want of care in construction and precluded the idea of non-liability on the score of fellow service. See Blanton v. Dold, 109 Mo. 64, 74, 75, 18 S. W. 1149. Another case where the doctrine was applied between master and servant is Haas v. St. Louis & S. R. Co., 111 Mo. App. 706, 90 S. W. 1155.
We do not hesitate to express the opinion, as was done on the former appeal, that the doctrine referred to might have been invoked by plaintiff had. he relied solely upon a general charge of negligence against defendant, for it seems that the uncoupling of a freight train in the circumstances stated, while running over the tracks at the rate of twenty or twenty-five miles an hour is such an unusual and extraordinary occurrence as to bespeak the want of due care on the part of the defendant in some respect or somewhere. It may be the
The general rule obtains to the effect that the specific acts of negligence pleaded and relied upon for recovery must be proved. [Waldhier v. H. & S. Jo. R. R. Co., 71 Mo. 514; Price v. St. Louis, etc., Ry. Co., 72 Mo. 414; Bunyan v. Citizens’ Ry. Co., 127 Mo. 12, 29 S. W. 842; Ely v. St. Louis, etc., Ry. Co., 77 Mo. 34; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S. W. 872; Orcutt v. Century Building Co., 201 Mo. 424, 99 S. W. 1062; Beave v. St. Louis Transit Co., 212 Mo. 331, 111 S. W. 52.] In proper cases when the allegation of negligence is general in character only and unaccompanied by a recital of the specific acts which go to the breach of duty relied upon, the doctrine of res ipsa loquitur may be invoked. The rule permitting a presumption of negligence to suffice for plaintiff proceeds on the theory that it is easily within the means of defendant to show there was no dereliction on his part, if such be the fact, while the plaintiff would labor under a great disadvantage if the burden to show the particular acts of negligence continued with him. [Roscoe v. Met. Street Ry. Co., 202 Mo. 576, 101 S. W. 32; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S. W. 1062;
There can be no doubt that one may join in his petition an allegation of general negligence with averments of specific acts touching the same matter of complaint. But when the petition contains a general allegation of negligence and proceeds to aver specific matters of fact as to the manner in which the mishap occurred, the specific averments are preferred and take precedence over the general allegation as to the same .subject-matter, and plaintiff is therefore required to prove the specific allegations of fact as laid. The authorities all go to this effect. See Mueller v. La Prelle Shoe Co., 109 Mo. App. 506, 84 S. W. 1010; McManamee v. Missouri Pac. Ry. Co., 135 Mo. 440, 37 S. W. 119; Waldhier v. H. & St. J. R. Co., 71 Mo. 514. From these premises, it is determined and the rule of practice obtains to the effect that where there is a general allegation in the petition as to the negligent breach of duty and it is accompanied by avermehts of specific acts of negligence touching the same subject-matter, the rule of res ipsa loquitur will not apply, for by going into the specification of negligent acts plaintiff has shown his familiarity with the grounds of liability involved and indicated not only his purpose but his ability as well to prove the same as laid. See Evans v. Wabash R. R. Co., 222 Mo. 435, 121 S. W. 36.
Indeed, the general doctrine above referred to is portrayed in all of the cases where the verdict is sought to be sustained on the theory res ipsa loquitur. In other words, in every case whether the petition contains a general allegation of negligence or not, if the averments point to the specific negligence relied upon for a recovery, the plaintiff is required to prove the same as laid and the doctrine of presumptive negligence may
It therefore appears, in view of the allegations of his petition, that plaintiff may not invoke the doctrine of res ipsa loquitur, even though his petition contains a general allegation of negligence, for the reason he saw fit to accompany such general allegation with specific allegations of negligent acts touching the same subject-matter. Having chosen to thus specify the engineers and others in charge of the train as the negligent persons, he must prove the fact as laid in order to make a> prima facie case, otherwise there appears a total failure to carry the burden which the law casts upon him. Having failed to prove any negligent acts whatever against the engineers or others in charge of the train, the judgment is unsupported by the evidence and should be reversed. It is so ordered.