Goodwin v. Missouri Pacific RailroadGoodwin v. Missouri Pacific Railroad
Furthermore the giving of this instruction was prejudicial because in the second sentence thereof it is assumed and stated as a fact that “plaintiff had, by reason of his failure to look and listen for the approaching train, driven his automobile so close to the crossing as to be in a position of peril.” An act bespeaking negligence on the part of plaintiff was thus held up and given undue prominence before the jury, although the element of plaintiff‘s negligence has no place in a case submitted under the humanitarian rule. In another instruction the jury had in effect been so advised, and this method of again bringing plaintiff‘s negligence to the fore could only serve to confuse and mislead the jury.
For the reasons above stated the order and judgment sustaining plaintiff‘s motion for a new trial is affirmed and the cause remanded.
All concur.
Plaintiff claimed to have been injured by getting coal in his eyes, resulting in the loss of his left eye and the impairment of his right eye, while working for defendant as a section hand at Marshall in the fall (October or November) of 1924. The only evidence in the record as to how his injury occurred was plaintiff‘s own testimony. He said that frequently when freight trains came into Marshall there would be no coal in the front part of the tender so that the fireman could conveniently reach it when firing on the road. On such occasions, a section man would be ordered to shovel coal from the back
Plaintiff testified as to what happened thereafter, as follows:
“I caught the tender, they stopped for me to get on at the crossing and I got up on the tender, then they pulled up on the track, oh, quite a ways above and did some switching where they could cut off those cars and switch them onto each track they wanted to get and when they stopped over there I believed they would stand there a while and they did not, . . . started to throwing this coal down. . . . I was standing up on the coal behind next to the back of the tender. . . . It was sloping, a high point and sloped this way down towards that hole, I was standing about on top of this coal shoveling it this way towards that hole. . . . I had been working there not over five or six minutes until all at once suddenly they let loose there on that hillside and gave it a jerk, jarred back and me forward, down with a shovelful of coal in my hand, throwed somehow or another; when I went down with that in my hand, the middle of the shovel handle hit some kind of a lump or something in there and throwed this here coal on the side of my face. . . . I heard no warning at all, heard no whistle or no bell. . . . They generally hollered at me, or told you to brace yourself or whistle, or rang the bell long before they moved. . . . It got into both eyes, got into the left eye worse than the right one. . . . Well, I told the fireman that I would have to get off, stop the train, I got my eye full of coal, I couldn‘t do any more.”
On cross-examination plaintiff testified further, as follows:
“Q. When you climbed into the tender and started shoving the coal down, was the fireman and engineer on there? A. Yes, sir.
Q. They were just standing there? A. Standing or sitting. . . .
Plaintiff said that the coal was mostly fine slack coal; that the pile was four or five feet high; and that the way the shovel struck, when he fell, caused a lot of it to go in his left eye and a smaller amount in his right eye. Plaintiff said that he went to the place where he boarded and that the lady there undertook to get the coal out with a handkerchief and also bathed his eyes. (She corroborated this part of his testimony.) He said that his eyes hurt the next day; that he told his foreman about getting coal in them; that his eyes bothered him continuously; that the pain “would come and go, get worse at times and get better and then get worse again;” but that
Defendant denied that the incident, which plaintiff related, ever happened and produced a number of engineers and firemen of freight trains coming into Marshall at the time who testified that they never heard of it. Plaintiff‘s foreman, and other men who worked with plaintiff, said that plaintiff never told them about it or said that he got coal in his eyes. Defendant also had several witnesses who told of other injuries to plaintiff‘s eyes; said that he wore glasses before the fall of 1924; that he had a speck or spot in his left eye; and that both of his eyes looked weak, red, and watery. Defendant also had statements signed by plaintiff in 1925 while in defendant‘s hospital in St. Louis which told of the incident in 1918 when a piece of ice went into his eye; stated that he never had any other accident to his eyes; and said there was no negligence on the part of defendant that caused his eye trouble. Defendant also had medical testimony tending to show that plaintiff had a cataract in his left eye, of such long standing that it was partly absorbed, due to some old injury which had been severe enough to puncture the eyeball; that he had a senile cataract forming in his right eye due to age and deterioration or disease; and that the condition of the right eye was not due to any injury to the left eye. Plaintiff denied that he ever injured his eyes except the two times while working for defendant, in 1918 and 1924. He said that two statements were taken each time at defendant‘s hospital, one covering the 1918 injury and one covering the 1924 injury; also said that he was unable to read at the time he signed them; and that he did not make some of the statements they contained. Defendant‘s witnesses in turn denied that two statements were taken or that plaintiff ever claimed that any accident occurred in 1924.
The negligence alleged and submitted was that plaintiff was, by his foreman, “directed and ordered to go and work upon a locomotive engine and shovel and move coal in the tender of said engine,”
These contentions really present only one question which is decisive of the demurrer to the evidence, namely: Did defendant owe plaintiff a duty to warn him before the engine was moved or was it plaintiff‘s duty to look out for himself? This is true, because if plaintiff was not under the duty of looking out for himself he did not assume the risk of the engine being moved without warning while he was working. If the enginemen owed him the duty of warning him before moving the engine their failure to warn him would be negligence and under the Missouri rule a servant never assumes risks arising from negligence for which the master is liable, but—“those alone which remain after the master has exercised ordinary care.” [Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S. W. (2d) 963; Clift v. St. Louis-San Francisco Railroad Co., 320 Mo. 791, 9 S. W. (2d) 972; Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S. W. 764; Compton v. Rich Construction Co., 315 Mo. 1068, 287 S. W. 474; Holloway v. Missouri, K. & T. Railroad Co., 276 Mo. 490, 208 S. W. 27; Johnson v. Waverly Brick & Coal Co., 276 Mo. 42, 205 S. W. 615; Williams v. Pryor, 272 Mo. 613, 200 S. W. 53; Fish v. C., R. I. & P. Railroad Co., 263 Mo. 106, 172 S. W. 340, Ann. Cas. 1916B, 147; Patrum v. St. Louis-San Francisco Railroad Co., 259 Mo. 109, 168 S. W. 622; Honea v. St. L., I. M. & S. Railroad Co., 245 Mo. 621, 151 S. W. 119; George v. St. Louis-San Francisco Railroad Co., 225 Mo. 364, 125 S. W. 196; Charlton v. St. Louis-San Francisco Railroad Co., 200 Mo. 413, 98 S. W. 529 (earlier cases cited).] If, on the other hand, it was plaintiff‘s duty to look out for himself, the risk of the engine being moved without warning “would be a risk incident to the work undertaken, in which the employer would have no part, and which the employee assumed as an implied part of his contract of employment, and for such an injury he could not recover damages from his employer for the reason he assumed the risk.” [Johnson v. Brick & Coal Co., 276 Mo. l. c. 53.] For example, a fireman expects to shovel coal on a moving engine and must learn to protect himself, while doing his work, from its usual ordinary starting and stopping and increases or decreases in speed. Those are risks necessarily incident to his employment, the very nature and purpose of which contemplates that much of his work shall be done while the engine is in motion. Likewise, the same question is decisive of the matter of plaintiff‘s contributory negligence. If it was the duty of the defendant to warn plaintiff before moving the engine, he could not be guilty of contributory negligence as a matter of law in starting to do the work when he did not know that it would not be moved before he completed it.
Defendant seeks to apply the rule, applicable to section men, and others working on railroad tracks, that such employees must look out for his own protection from trains thereon. [Evans v. Wabash Railroad Co., 178 Mo. 508, 77 S. W. 515; Cahill v. C. & A. Railroad Co., 205 Mo. 393, 103 S. W. 532; Degonia v. Railroad Co., 224 Mo. 564, 123 S. W. 807; Kirkland v. Bixby, 282 Mo. 462, 222 S. W. 462; Hammontree v. Payne, 296 Mo. 487, 246 S. W. 915; Hughes v. M. R. & B. T. Railroad Co., 309 Mo. 560, 274 S. W. 703; Voorhees v. C., R. I. & P. Railroad Co., 325 Mo. 835, 30 S. W. (2d) 22.] Switchmen and other employees working in and about railroad yards or cars or engines moving or about to be moved therein are likewise under the duty of looking out for themselves, in the absences of a rule, custom or assurance requiring a warning, when going around, on or near tracks, engines or cars. [Rashall v. St. L., I. M. & S. Railroad Co., 249 Mo. 509, 155 S. W. 426; O‘Donnell v. B. & O. Railroad Co., 324 Mo. 1097, 26 S. W. (2d) 929; Jones v. St. Louis-San Francisco Railroad Co., 325 Mo. 1153, 30 S. W. (2d) 481; Martin v. Wabash Railroad Co., 325 Mo. 1107, 30 S. W. (2d) 735; Ingram v. Mobile & Ohio Railroad Co., 326 Mo. 163, 30 S. W. (2d) 989; Armstrong v. Mobile & Ohio Railroad Co., 331 Mo. 1224, 55 S. W. (2d) 460; Reed v. Terminal Railroad Assn., 62 S. W. (2d) 747; Crossno v. Terminal Railroad Assn., 333 Mo. 733, 62 S. W. (2d) 1092.] Plaintiff relies upon a duty to warn arising out of the common-law duty requiring the exercise of ordinary care under the circumstances and not
It seems reasonable to suppose that one reason for having the section men move the coal forward, while the train was in the yards, was to obviate the risks incident to the firemen doing so while running on the road.
Plaintiff, when ordered to do the work, says that he protested to his foreman about doing it while the engine was moving around. The foreman assured him that it would not be necessary to work on a moving engine, as they would soon stop to go to supper. Plaintiff got on the engine and rode there without attempting to do the work while the switching movements were continued. He inquired of the enginemen about them going to supper and was told they had already been and so learned that he would not have the opportunity to do the work while they were stopped for that purpose. He had been ordered to do the work but was confronted with a change of the conditions which he had been led to expect, but still he did not attempt to get up on the coal pile in the tender and move it while the engine was moving. At most, it could be no more than a jury question whether plaintiff was guilty of contributory negligence in
In discussing the duty of a master to a servant in this kind of a situation, in 3 Labatt‘s Master and Servant, 2929-31, section 1112, it is said:
“One very common aspect of the duty to provide a safe system is presented in those cases in which the gravamen of the complaint is a breach of the obligation to warn a servant against perils arising from the manner in which the instrumentalities are affected by isolated events which occur at more or less frequent intervals during the performance of the servant‘s work, but which produce no permanent effect upon the intrinsic condition of the instrumentalities themselves. . . . The warning may take the form of some signal informing the servant that the change is imminent. . . . This obligation is one which arises out of the duty to conduct the business on a safe system. . . . One phase of the obligation is indicated by the principle that the master is bound to see that no order with respect to change of position of the subject of the work shall be executed without due warning to the employee. . . . Under such circumstances it is reasonable to infer the existence of an absolute
duty on the master‘s part to make arrangements for imparting a timely warning to any servant who may be imperiled by such a cause. The most numerous illustrations of the duty to give warning are furnished by those cases in which the danger was produced by the movements of railway rolling stock, or other similar appliances.” [See, also, 39 C. J. 456, 462, secs. 572-577, p. 634, sec. 743, p. 638, sec. 749.]
Illustrations of situations in which this duty may arise are shown by a number of Missouri cases. In Weaver v. St. Louis-San Francisco Railroad Co., 170 Mo. App. 284, plaintiff, a car cleaner for the Pullman Company, one of the defendants, was inside a car standing on the top of a small stepladder washing the ceiling. Other cars were coupled onto it in a manner not violent or unusually severe but enough to throw plaintiff from the top of the ladder to the floor and injure her. The court, in holding the Pullman Company liable because its foreman in charge of the work failed to warn plaintiff that other cars were about to be coupled on, said:
“Plaintiff was the servant of the Pullman Company, engaged in her master‘s work which she was performing in the proper place and manner. She was in a position where a sudden and unexpected movement of the car would imperil her safety and where she was utterly helpless and unable to protect herself. She was compelled to depend on the care of others for her safety and it was the duty of her master in discharging its obligation to exercise reasonable care to provide its servant with a reasonably safe place in which to work, to adopt reasonable means to prevent the car from being moved while she was in a position so dangerous. Scanlon, the foreman, knew that three of the cars belonging to the train were absent and might be switched in at any time. Further he knew that such occurrence was so infrequent that plaintiff would not be looking for it and that she might be in a position of utter helplessness and danger. He had no control over the movement of cars by the railroad company, but he did have opportunity and means for protecting his servant either by flagging the cars on which the cleaners were working or by keeping a lookout for the missing cars and giving timely warning to his servants of their approach.”
A somewhat similar case was Johnson v. Brick & Coal Company, supra. In that case plaintiff was working on top of a car of coal picking out and throwing away rock and other substances. Other cars were coupled onto the coal car without giving plaintiff any warning and he was thrown out and injured. While plaintiff there relied upon the assurance of the foreman of the coal company that he would warn him of a switching movement, this court said that both the coal company and the railroad company were liable because “the plaintiff had the right to assume that the defendants would not imperil his safety by permitting or causing the car on which he
“Nor can the defendants, or either of them, escape the result of causing or permitting cars to be pushed against the car upon which the plaintiff was working, without warning, by showing that they or either of them habitually neglected to do so. This is upon the principle that no custom or usage can make that lawful which is unnecessarily dangerous; and no one will say that to push cars back against the one on which the plaintiff was at work without warning was not unnecessarily dangerous.”
In Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S. W. 481, plaintiff was injured while painting a car when other cars were without warning coupled onto it. This court, holding the railroad liable, said:
“But there is another view upon which the plaintiff was entitled to have his case submitted to the jury. It is the duty of the master to provide and maintain a reasonably safe place for his servant to work. (Citing authorities.) When then the defendant, through the paint boss, Mehlin, sent the plaintiff to work upon the unfinished car, on one of its tracks, it was its duty to provide against other cars running down against the car upon which he was working and to see that other cars which were pulled out were not attached to the car upon which he was working, without giving him warning of its intention to move the said car.”
Likewise, Tetwiler v. St. L., I. M. & S. Railroad Co., 242 Mo. 178, 145 S. W. 780; Ostertag v. Union Pacific Railroad Co., 261 Mo. 457, 169 S. W. 1, and Carbaugh v. St. Louis-San Francisco Railroad Co. (Mo. App.), 2 S. W. (2d) 195, are authorities for the proposition that it is common-law negligence, irrespective of rule, custom or statute, to suddenly move an engine without warning when an employee is in a position where it will strike him and has no reason to expect or look out for such a movement. In a very recent case, Mitchell v. Wabash Railroad Co., 69 S. W. (2d) 286, l. c. 291, where plaintiff was injured by movement of a turntable, moved without warning, after he had been sent to operate it, this court said:
“If, as he testified, plaintiff was ordered by Burnley to operate the table, Burnley and the railway company owed him the duty to use reasonable care to protect him from injury while acting in obedience to that order. If permitting the table to be moved without warning to him while he was so engaged threatened injury to him and Burnley so knew or in the exercise of ordinary care should have so known, then plaintiff was entitled to warning of such impending movement of the table regardless of custom.”
We hold that, under the circumstances disclosed by plaintiff‘s evidence, plaintiff was not engaged in the class of work where an employee is required to protect himself; that defendant did owe him a
Defendant further assigns as error the refusal of the following instructions requested by it:
“The Court instructs the jury that if you find and believe from the evidence that plaintiff was injured, if you find he was injured, by reason of an accident, that is an occurrence which happened without negligence of either plaintiff or defendant, then in that event your verdict must be in favor of the defendant.”
Defendant does not question the rule of Hogan v. Public Service Company, 322 Mo. 1103, 19 S. W. (2d) 707; Sloan v. Polar Wave Ice & Fuel Company, 323 Mo. 363, 19 S. W. (2d) 476; Wright v. Quattrochi, 330 Mo. 173, 49 S. W. (2d) 3; Mitchell v. Dyer (Mo.), 57 S. W. (2d) 1082; and Brewer v. Silverstein (Mo.), 64 S. W. (2d) 289; that “when the issue is simply one of defendant‘s negligence vel non the giving of an accident instruction is error;” that “only when the record supports an inference that the occurrence proceeded from an unassignable cause may the instruction be given;” that it is not proper to give such instruction merely because “the evidence permits an inference that the parties were innocent of negligence . . . unless there is something in the record tending to show the casualty resulted from an unknown cause;” and that “though there be a doubt as to the negligence it does not follow there is also a doubt as to the cause of the mishap.” Defendant says that the jury had a right to disbelieve plaintiff‘s testimony that the engine moved when he fell and still believe that he fell, and this would justify an accident instruction on the theory that the jury might find from his testimony that he fell because the coal pile slipped with him while the engine was standing still. The trouble with that contention is that even though the jury did not believe defendant‘s testimony that the engine was moved without warning him, and find that he was not caused to fall thereby, there is still no evidence in the record tending to show that the coal pile ever slipped at all, while the engine was standing still, by mere accident, or otherwise, and that such a slip or slide caused plaintiff‘s fall and injury. The jury could only reach that conclusion by guess, speculation and surmise and not from evidence. Plaintiff‘s evidence is positive that the coal did not slip while the engine was standing still and that the engine did move and throw him down. Even defendant‘s evidence does not tend to prove that the coal slipped, while the engine was standing still, but that instead that no such incident ever oc-
“The court instructs the jury that, if from consideration of all of the evidence, you are unable to determine what caused the injury, if any, to plaintiff‘s eyes, or either of them, then the plaintiff cannot recover and your verdict must be for the defendant.”
Defendant also assigns error because, while custom to warn was not alleged, plaintiff was permitted over its objection to testify that on previous occasions, when he was coaling an engine, the enginemen “would always whistle or holler at me or tell me” and “generally hollered at me or told you to brace yourself or whistle or rang the bell long before they moved.” No custom to warn was pleaded but none was submitted as a basis of recovery. This evidence was not offered as evidence of a general custom. It showed only the personal experience of plaintiff in former instances and it is to be doubted that it was inclusive enough to show a general custom of that work. [See Jones v. St. Louis-San Francisco Ry. Co., 325 Mo. 1153, 30 S. W. (2d) 481.] It would, of course, be error to allow plaintiff to submit and recover upon a violation of a custom not pleaded but injected into the case by evidence introduced over defendant‘s objection. That is not the situation here and we hold that plaintiff‘s testimony as to what the enginemen had done in the way of giving a warning to him on former occasions went only to establish evidentiary facts which were competent to show that plaintiff did not assume the risk and was not guilty of contributory negligence as a matter of law, in proceeding to do the work without knowing that the engine would not be moved before he completed it, and, therefore, also upon the issue of what ordinary care required in the work plaintiff was doing. [Norton v. Wheelock, 323 Mo. 913, 23 S. W. (2d) 142; Woodward v. Missouri Pacific Railroad Co., 316 Mo. 1196, 295 S. W. 98; Carbaugh v. St. Louis-San Francisco Railroad Co. (Mo. App.), 2 S. W. (2d) 195.] Defendant “could have tendered an instruction limiting the effect of this evidence.”
Defendant further complains of this court‘s refusing to remand the case “because of the inability of the stenographer to furnish a complete transcript of the evidence and proceedings in the case” and contends “that the overruling of said motion denied defendant the equal protection of the laws and that an affirmance of the judgment below on the record now before the court would deprive it of its property without due process of law, as prohibited by Section 1 of the Fourteenth Amendment to the Constitution of the United States.” This involved only the evidence of one of plaintiff‘s medical experts, which had nothing to do with the question of whether plain-
The judgment is affirmed. Ferguson and Sturgis, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.