123 Mo. App. 619 | Mo. Ct. App. | 1907
The plaintiff- was engaged in defendant’s service as a brakeman on one of its freight trains. The train left a station called Mena at about four o’clock in the morning whence it proceeded on an up-grade to what was called the top of the mountain. From the latter point there was a descending grade, for the distance of near fourteen miles, to a place called Page, where the train was wrecked. The train was equipped with “airbrakes” set from the engine and the cars had also handbrakes connected by a rod with the top of the cars, which were set by brakemen. Shortly before the Avreck, plaintiff concluded to set some of the brakes. He tried one or more on different cars and found by giving them trial turns, that the rod and wheel revolved loosely, that is, there was no indication that revolving the brakewheel was having any effect on the brake on the wheels of the car. He passed over to the car which figures in this controversy and gave the brake-wheel a preliminary turn to see if it would show itself
Plaintiff concedes that he was unable to make a showing of culpable negligence on defendant’s part unless he has done so under the rule of res ipsa loquitur. He concedes that except as to his point on the “Federal Safety Appliance Act,” to which we shall refer further on, his case was prosecuted solely under that rule.
The' decision of the case is thus made to turn upon an application of the rule of res ipsa loquitur. There is some apparent -diversity in the views which the courts have taken of that rule of evidence. We believe the difference, in most instances, is more apparent that real, and that it comes from differences of expression between those who mean the same thing, and from differences as to whether a given state of facts will justify the application of the rule. There are certain cases where from matters of public policy and the general subservience of justice, the rule will be applied in favor of a plaintiff though he has not proven the defendant to be culpable, that is,- guilty of negligence. The law has given, in his aid, a rule of presumption that the mere happening of the occurrence which caused his injury was the result of negligence. It may be such an occurrence as may well happen without negligence, yet the presumption in his favor will entitle him to a verdict, unless the defendant comes forward and shows himself free from fault. It
But the question in this case is, whether an employee may call such presumption to his aid. The plaintiff insists that he may. He contends that it is a rule of evidence with no existing reason why it should not be applicable to a servant as well as a passenger. We think that there is good reason for applying the rule to the latter class and not to the servant. The passenger does not assume risks while the servant does. The instances of non-liability for injury to a passenger (in the absence of contributory negligence) are rare. The instances of liability to the servant are not nearly so frequent. The passenger is helpless and he necessarily places himself in the carrier’s hands. He knows nothing of the carrier’s
The greater part of what we have just stated as to a passenger applies with equal reason to a stranger who may suffer injury; and so we find the courts extending the presumption to him in aid of his evidence against the party he charges with the wrong.
The foregoing considerations have occurred to us as good reason for a distinction between classes of persons. That the law has not granted the benefit of this presumption to a servant, and that it holds him to the necessity of an affirmative showing of negligence, is sustained by the great weight of authority. [Patton v. Railway Co., 179 U. S. 658; Sack v. Dolese, 137 Ill. 129; Joliet Steel Co. v. Shields, 146 Ill. 603; Mixter v. Coal Co., 152 Pa. St. 395; Railroad v. Hughes, 119 Pa. St. 301; Redmond v. Lumber Co., 96 Mich. 515; Toomey v. Eureka Works, 89 Mich. 219; Huff v. Austin, 16 Ohio St. 386; Lincoln Ry. Co. v. Cox, 18 Neb. 807; Chicago Ry. Co. v. Kellogg, 55 Neb: 718; Kincaid v. Railroad, 22 Oregon 35; Johnson v. Railroad, 36 West Va. 73; Brownfield v. Railroad, 107 Iowa 251; Benedick v. Potts, 88 Md. 52.]
There is, however, authority based on the best of reason, showing that the servant’s case may be made out by mere proof of the occurrence which caused the injury in those instances where the occurrence itself, without the aid of a presumption, shows negligence. In case of a passenger, as we have seen, the occurrence itself may not show negligence and the presumption comes to his relief. But, in the servant’s case, if the occurrence is of that nature, which, of itself, shows negligence without the aid of a presumption, he may, as just stated, make a case by showing the occurrence only. Thus, where the
We have thus far discussed the case without referring to what has been said of kindred questions in this State. We have done so for the reason that there has been presented to us a number of decided cases, from the Supreme Court and the Courts of Appeals, by the respective counsel Avhich, as each insists, determine the matter in his favor. We And that a number of those to which plaintiff refers are passenger cases, Avhich do not aid us in determining the case of a servant. These are Dougherty v. Railway Co., 9 Mo. App. 478, and 81 Mo. 325; Kelly v. Railway Co., 113 Mo. App. 468; and Hunt v. Railway Co., 14 Mo. App. 160. A number of other cases cited involved the rule as applied to a stranger, viz.: Gannon v. Gas Co., 145 Mo. 502; Hill v. Scott, 38 Mo. App. 370; Seiter v. Bischoff, 63 Mo. App. 157; Gallagher v. Illuminating Co., 72 Mo. App. 576; Cleary v. Transit Co., 108 Mo. App. 433; Tateman v. Railroad, 96 Mo. App. 448. In McCarty v. Railway Co., 105 Mo. App. 596, the plaintiff was not a servant. These also, as we have shoAvn, are not applicable.
But some of plaintiff’s citations are cases in which a servant brought’ the action. They are Blanton v. Dold, 109 Mo. 64; Stoher v. Railroad, 91 Mo. 509; Kelley v.
We do not believe it ought to be said that any of these cases afford ground for the position that a servant may be aided by a presumption in making out his case. It is necessary that he produce tangible evidence of his master’s negligence, and this, as we have just seen, the occurrence itself may in some instances supply for him. We think the cases in our appellate courts cannot be carried further than that. In so construing and distinguishing them we find them in harmony with the view taken by the Supreme Courts of Pennsylvania and other states.
' Furthermore, this view is borne out by other cases in the Supreme Court. Thus in Smith v. Railroad, 113
So we conclude that the real difference between the rule res ipsa loquitur, as applied to a passenger (or stranger) and a servant, is that in the case of a passenger a presumption aids the occurrence to speak. While in the case of a servant there is no such aid and the occurrence itself must speak its character. And, at last,
These general observations of the law have been necessary to a proper understanding of our disposition of this case. The occurrence here in controversy was not of such nature as to be classed with those which themselves show they must have happened from a negligent cause for which defendant would be chargeable. When the evidence shows a state of affairs where an inference could be reasonably drawn that the occurrence was due to a cause or causes other than culpable negligence of the defendant, a case is not made for the plaintiff. [McGrath v. Transit Co., 197 Mo. 97.] This occurrence, of course, had a cause. But it by no means follows that such cause was one for which defendant could be charged with liability. If it was something connected with the brake which broke or gave way, it may have been-the brake clasp itself, or the chain, or the brake rod, or the wheel at the top with which the brake is set. There is nothing to show which of these it was. Either of them may have had a concealed defect, which inspection, however painstaking, would not have shown, and for the non-discovery of which, defendant could not be blamed. It has always been understood in this State to be the law that for a servant to hold the master liable for an injury received in the course of his employment, he must produce competent affirmative evidence of the master’s negligence. [Howard v. Railroad, 173 Mo. 524.] The injury of which plaintiff complains may have been the result of his negligence, or of his own misadventure. His hands may have slipped; his hold on the wheel may have unconsciously loosened as he swung his weight iñ his effort to tighten the brake. So as he swung his weight around with the wheel, his feet necessarily bearing hard upon the roof of the car, they may
It is a part of plaintiff’s contention now, that he has a case under an act of congress known as the Federal Safety Appliance Act. He claims that though that statute was not, in terms, pleaded. And that though the petition was not drawn with a view to that act, yet, it sets forth facts which fairly put the case within that statute. It is enough to say of this contention that no case was attempted to be made under that statute, that no issue was submitted to the jury in respect thereto, and, so far as the record shows, there was no thought prior to or at the trial, of making a case under that statute. It is familiar practice that the appellate courts of this State refuse to permit the parties to try any other case on appeal than that heard and determined in the trial court.
The case of Voelker v. Railroad, 116 Fed. Rep. 867, in no way supports plaintiff’s contention. In that case the federal statute was brought into the case at the trial by instructions from the court to the jury, and the court asked counsel if there was any point upon which they desired instructions. • It is stated in the opinion in that case that opportunity was given to the defendant to be heard at the trial. No such situation, or condition of case is found in the case at bar. For there is nothing in the ease, from opening until close of trial, to suggest, in even a remote way, that a case was being tried under the federal statute. The instructions for plaintiff not only do not indicate such theory, but they show the contrary. They show the case to be based and submitted on negligence of defendant, not in violating a statutory requirement as to the equipment of the engine and cars
We are satisfied upon tbe whole record that tbe judgment is without legal support and it is accordingly reversed.