94 Mo. App. 215 | Mo. Ct. App. | 1902
Haworth, the plaintiff, was hurt by being precipitated headlong from a handcar which was running on the line of the defendant’s railway, and instituted this action to recover damages for the injuries sustained.
He was a member of a gang of workmen about thirty-five in number, under the superintendency of James Dyson, whose business it was to ballast and repair the railroad track. Dyson called out his men one morning at the station of Decatur, Arkansas, and had eleven of them, including the plaintiff and himself, get on a handcar to go to a station named Gravett.
The handcar encountered a gravel train about a mile-from Decatur, standing on a siding with its rear end projecting on the main track. Dyson ordered it carried around
A hand named Bodkin was charged with the duty of slackening the speed of the car by placing his foot on a brake which projected above the floor of the car and controlled the speed. After getting the handcar around the gravel train and loading the switch-points, the men resumed their places on it and Dyson told them to pump up and get out of the way of the gravel train, which was backing towards them. There was a very steep grade from that point to the steel pile and the testimony of some of the witnesses is that the car acquired a velocity of twelve or fifteen miles an hour as it went down the grade, instead of six to eight miles which was the usual velocity. When from forty to fifty feet from the steel pile, Bodkin threw his weight on the brake, diminishing the car’s momentum so suddenly that four of the men on the front end were thrown from their positions to the ground and the plaintiff seriously injured by the fall and the car running on him after he fell.
The petition contains three specifications of negligence against the defendant; first, that the handcar was run by .Dyson at a dangerous rate of speed, to-wit, at the rate of from twelve to twenty miles an hour; second, that Dyson’s habit had been theretofore, when directing the operation of a handcar, to give an order (styled a “cautionary command”) to stop at from one hundred and fifty to two hundred feet from the place at which it was intended to stop; but that he neglected to give such command on this occasion or to give it at the proper and customary time; third, that the defendant failed to use ordinary care to provide plaintiff a reasonably safe place in which to work,, the handcar on which he was ordered to ride being overcrowded, as it contained eleven men
A verdict for eleven hundred dollars in favor of plaintiff was rendered.
At the conclusion of plaintiff’s evidence, as well as at the conclusion of all of the evidence, an instruction in the nature of a demurrer to plaintiff’s case was requested by the defendant and refused. This ruling as well as the rulings on other instructions and on the evidence offered, are assigned as errors.
A careful perusal of the testimony has convinced us the charges of negligence were supported by substantial proof, and that the circuit court ruled correctly in submitting the ease to the jury.
The evidence in regard to the speed at which the car was running varied widely, plaintiff testifying it was making fifteen miles an hour, while one witness for the defendant swore its speed was not higher than six miles an hour. Other witnesses testified to eight, ten, and twelve miles. There was testimony also that the usual rate of speed was eight or ten miles an hour. Dyson told the men who'were working the handles to pump up in order to escape the gravel train. The grade was steep and if an excessive speed was attained, it was with his knowledge, as he was on the car, and does not pretend he gave any direction to lower it,
That the car was crowded is not denied, but it is claimed there were no more than the usual number of men on it. The question in this connection is, not whether there were more than usual but more than were compatible with the reasonable safety of the men ? The speed of the car was so high that the hands who were working the handles had to let go on account of the violent motion, and there was so little-room they had to stand at the sides of the handlebars instead of in front of them. There was only about a foot of space between the levers and the ends of the car. The platform on which
As to the warning or signal which the plaintiff claimed Dyson was accustomed to give before the speed of the car was checked, when it was running fast, there was testimony he usually if not always exclaimed “hold the car,” or similar words, from three to four rail-lengths before the stopping point was reached, and Dyson swore himself that on this occasion he cried out to Bodkin to hold the car when within one and a half or two rail-lengths; that is, he allowed about one-half the customary distance in which to stop, and, of course, necessitated a much quicker stop than usual.
An ingenious argument is made by appellant’s counsel on this assignment of negligence, which they are disposed to treat as the only one meriting serious attention and as disproved by the whole evidence. After an attentive consideration of their presentation of the question, in connection with the record, we think they are at fault in contending the case
The common-law rule of the non-liability of an employer for an injury to one of his servants by the negligence of a co-servant, prevails in Arkansas, and if no one but Bodkin was to blame for the accident, the railroad company can not be held responsible, because Bodkin was Haworth’s fellow-servant. Dyson was not. He was the foreman of a large gang of men, had authority to employ and discharge help, and the men in the gang were under his control in the performance of their duty. His relation to the plaintiff is controlled by the following statute of the State of Arkansas:
“All persons engaged in the service of any railway corporation, foreign or domestic, doing business in this State, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of such corporation, or with the authority to direct any other employee in the performance of any such duties, are vice-principals of such corporation, and are not fellow-servants with such employee.” Statutes of Arkansas, 1894, sec. 6248.
The argument advanced by the counsel for appellant in regard to Dyson’s giving or failure to give an order to stop,, is as follows: if no command to stop the ear was given by Dyson to Bodkin, as the plaintiff’s testimony tends to prove, then Bodkin’s action in stopping it was the sole cause of the injury and the company is not liable. If, on the other hand, Dyson commanded Bodkin to hold the ear, as he, Bodkin and others swore, the usual warning was thereby given to the cx*ew and the accident was caused solely by the careless obedience of Bodkin in slackening speed too suddenly and, hence, his negligence was the sole cause of the injury and the
The argument is also advanced that it was unnecessary to give the command to stop the car, or any notice of the reduction of speed, as was usually done, because Dyson had notified the crew when they picked up the switch-points that a stop would be made at the steel pile to get rail-braces, which was sufficient notice. This argument will not hold water. After the car had passed the point at which a reduction of speed should have begun to stop at the steel pile, and the speed was neither reduced nor anything said about- stopping, the crew may have been put off their guard by an impression that no stop would be made. It was for the jury to say whether it was 'incumbent on Dyson, as he was in charge of the car, to sound some note of warning to the crew at the usual place if he wanted the car cheeked, and this assignment of negligence in all its phases was for the jury to decide on the whole evidence.
Neither can we adopt the suggestion that Dyson was a fellow-servant with Haworth, when the accident occurred, though a foreman at other times, because they were then engaged in a common duty. No Arkansas case holding such
No error was committed in receiving plaintiff’s estimate of the speed of the car. He had been working in the employment he was then in for more than four months and was sufficiently expert to give testimony on that point; as much so as the other witnesses who testified about it. Walsh v. Railroad, 102 Mo. 586.
Cope’s testimony as to the custom in handling handcars, when he worked for the company two years previous to the accident, had better be omitted on a retrial of the case as relating to too remote a date.
“I offer to show by this witness that he made a physical examination of the plaintiff, Walter Haworth, on the fourteenth day of May, 1901, just after receiving the injury for which this suit is brought, and he made such an examination, not as the physician of Walter Haworth, but as the physician of the defendant company, and that Haworth at the time knew he was such a physician, and I offer to show from that examination that nothing was discovered save and except a scalp wound.”
Said witness was permitted to testify that plaintiff walked away from his office and he saw him going down the street on the east side of the square and did not notice anything wrong about his walking; that he afterwards saw him in court and asked him how he was treated at the hospital and plaintiff said all right. The court rightly refused to permit this physician, who attended the plaintiff professionally, to testify what he learned while treating him, since it was objected to as privileged. R. S. 1899, sec. 4659; Gartside v. Ins. Co., 76 Mo. 446; Streeter v. City of Breckenridge, 23 Mo. App. (K. C.) 244; Corbet v. Railroad Co., 26 Mo. App. (St. L.)
This ease was carefully and fully instructed and no particular exception is urged save to the refusal to instruct absolutely in defendant’s favor, the direction as to the measure of damages and the refusal of three instructions which the defendant requested to the effect that no negligence could be found on account of the speed of the ear, the number of men on it, or Bodkin’s stopping the car too quickly, if Dyson ordered it stopped at the steel pile. We have already considered the propositions embodied in those three charges. In our view of the case, they were properly refused, especially as the one last noticed was fairly covered by others given for the defendant. The jury were told in several instructions that if they found the injury was caused solely by the negligence of Bodkin, their verdict should be for the defendant; and undoubtedly the law is that if Dyson’s negligence was a partial cause the company is liable.
The following instruction was given on the measure of damages:
“If you find a verdict in favor of plaintiff you will assess his damages at such sum as will reasonably compensate him for whatever injury you believe from the evidence he sustained from defendant’s negligence, if you believe it to have been negligent, and in estimating such damages you will take into consideration:
“First. The nature, character and extent of such injuries, if any;
“Second. The pain of body and mind, if any, which he has siiffered from said injury;
“Third. The pain of body and mind, if any, which plaintiff is reasonably certain to suffer in the future therefrom ;
“Fourth. The amount and value of time, if any, lost*227 by plaintiff in consequence of -said injuries, but not to exceed $300 therefor;
“Eifth. The impairment, if any, in his earning capacity caused by such injuries.
“Your finding in the aggregate will not be over $14,900.”
The foregoing charge sanctioned a finding by the jury of substantial damages in favor of plaintiff on account of the amount and value of his lost time for an amount not to exceed three hundred dollars. No testimony whatever was introduced as to the value of plaintiff’s time, although he was a laborer working for stipulated wages and the proof could have been made by a bare question.
We had occasion recently to go over the subject of recovery for lost time in personal injury cases and ruled that where the nature of the employment was such that proof can be made, it must be; but where from the character of the employment it is impossible to prove definitely the value of a plaintiff’s time, facts and circumstances which will aid in estimating its value may be shown and will be sufficient to warrant an instruction to the jury to take into consideration the plaintiff’s loss of time in estimating his damages. Mabrey v. C. G. & J. Gravel Road Co., 92 Mo. App. (St. L.) 596. In that case, however, we explicitly said that no looseness of practice in making proof of the value of lost time was to be indulged and whenever it was susceptible of positive proof, that kind would be required. There can be no excuse for not introducing evidence to establish what the plaintiff’s time was worth and the omission of that proof likely escaped the attention of the able judge before whom the case was tried.
Nor was the foregoing instruction right in its general scope; for it was a direction to the jury to allow substantial damages for that one item up to three hundred .dollars, and if the defendant had endeavored to limit it by an instruction to the jury to return only nominal damages for plaintiff’s
The rule announced in Murray v. Railroad Co., 101 Mo. 236, that the value of the services of a common nurse could be recovered without particular proof, because their value is generally known, has been since overruled (Cobb v. Railroad Co., 149 Mo. 609) and we do not think the wages of men working in railroad construction are so uniform o-r generally known that evidence of what they are is unnecessary; they probably vary in different localities and should, be proven like other earnings. Slaughter v. Railroad Co., 116 Mo. 269; Mammerberg v. Railroad Co., 62 Mo. App. (K. C.) 563; O’Brien v. Loomis, 43 Mo. App. (St. L.) 29.
.On account of the error in the instruction on the measure of damages, the judgment would have to be reversed and the cause remanded for another trial, but for the fact that the respondent has offered to remit the sum of three hundred dollars from the judgment recovered below by a suggestion to that effect made since our opinion was handed down, and as that sum was the full amount which the jury could have allowed on account of loss of time, said offer to remit is accepted and the judgment affirmed for eight hundred dollars, the costs of the appeal to be taxed against the respondent.