Hodges v. St. Louis & San Francisco Railroad

135 Mo. App. 683 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts). — The point of contention on the part of the appellant is, whether the failure to supply oil and the consequent lack of light with which to do the work was the proximate cause of the injury. The question of proximate canse and its accurate definition, have vexed the courts and been the occasion of a great amount of divergence of decision.

The authorities bearing on the question have been very thoroughly collated in two recent decisions of this court, one Foley v. McMahon, 114 Mo. App. 442; the other, Lawrence v. Ice Co., 119 Mo. App. 316. It is not considered necessary here to enter into a lengthy discussion or examination of this point, for, after all, each case appears to have turned so much on the facts in that particular case that the announcement of a settled rule applicable to all cases, has not often been attempted. This court, speaking through Judge Goode, in Lawrence v. Ice Co., supra, has given a definition of the term ‘proximate cause,” which aptly applies to this case. It is there said (l. c. 328) : “As used in judicial decisions the term signifies a breach of duty owed to a person followed by injury to Mm, either as a direct result of the dereliction or through its consecutive consequences, and subject to the condition that there must have been sufficient probability of the breach proving detrimental instead of innocent, that, in reason, blame for the injury may. fairly be imputed to the wrongdoer.” It is also held in the same case (l. c. 325) that, “Whether an act of negligence was the proximate cause of an alleged damage, is an issue of fact if contrary opinions may arise on the evidence;-if not, it is a court matter,” citing Henry v. Railroad, 76 Mo. 288.

In Warner v. St. L. & M. R. R. Co., 178 Mo. 125 (l. c. 133), our Supreme Court holds that the burden of proof in cases of injuries from the negligence or fault of a defendant is primarily upon a plaintiff to prove the negligence, charged.. “It is not enough to show an accident and an injury. A causal connection must be established between the accident and the negligence charged in order to make out, a case for the jury.”

Returning to the decision in the Warner case, our Supreme Court has further held, that failing to show direct connection between cause and- effect, it is the duty of the court, as was done in that case, to take the case from the jury. Continuing, the court held that there must be a direct connection between the negligent act and the injury, and the negligence must be the proximate cause of the injury; that if the injury may have resulted from one of two causes, for one of which and not the other the defendant is liable, it is for the plaintiff to show with reasonable certainty, that the cause for which the defendant is liable, produced the result, and if the evidence leaves it to conjecture, the plaintiff must fail of his action.

Applying these rules to the case at bar, it will be observed that this respondent was at work at a point some thirty miles distant from the directing officer, his immediate superior, tbe master mechanic, Mr. Henry, located at Cape Girardeau. He looked to him for directions possibly, certainly for supplies and means with which to do his work. The duties of the respondent were, among others, to keep the fires of the engines “banked” — for that he was required to fill up the firebox with coal. It was part of his duty to clean and keep the locomotives under his charge clean. That is to say, he was not only to attend to keeping the fires in proper condition for instant work, but he was to keep the locomotives clean, in short, to clean up after his work. He had a helper under him. In a small way he was a vice-principal. He was to 'do his work, whether by night or by day, as the locomotives were placed. He knew he was liable to be called to his work at any and all hours and in all kinds of weather. The responsibility as well as the labor itself was with him. He had no oil, on the night of the accident, and therefore had to work in the dark, or by the light from the firebox, or not work at all. This lack óf oil was not a sudden failure — he had been Avithout it for eight or ten days before then. He had called for it, but his call had not been met. He kept at work, however, throwing in coal, feeding and banking the fire, and by his OAvn testimony, had left coal or cinders on the floor, at least he says he supposes he did, although he manifestly cannot be sure about that; for his case must rest upon the theory that it was so dark that he could not see what was on the floor. At all events he slipped and crushed the fingers of his hand, having caught his hand between a lump of coal, weighing eight or ten pounds, which he had in his hand and .was about to throw into the firebox, and the edge or rim of the machine. His whole case rests on the claim he makes that if he had had a light to work by, he would have seen the cinders or loose coal, if they caused his fall, and would have swept them off. That may or may not have been so; he might have left them there, not thinking of the danger, even if it had been broad, day, or his light have been trimmed and burning. He might have slipped on the coal or cinders even if he had seen them. He might even have had oil and not used it. There is no evidence whatever to show that he protested against having to work without a light, Avhich is a circumstance showing that did not regard the light as vital to his safety or as indispensable for his work. When these matters of speculation interpose, and who can deny but that they may and do interpose? we are bound to look elsewhere for the “proximate cause.” and to say, as a matter of law, that interposing as they do, it cannot be held that the absence of oil was the proximate cause. We cannot be even sure that the presence of the loose coal and cinders caused him to slip and fall — we are to “suppose it was there,” for it was dark on the deck. The burden was on the respondent to show not only that he had not been furnished with oil for the torch, but that the injury was caused by lack of a light. [Trigg v. Land & Lumber Co., 187 Mo. 227, l. c. 234.] Assuming that the presence of the loose coal or cinders was the cause of the fall, then that was the proximate cause, and neither the court or jury are Avar ranted in saying that if the respondent had been furnished with oil and had had a light he would have seen them, and seeing would have removed them, or would not have slipped on them. Under such a state of 'facts, we do not think a jury was warranted in laying the accident to the absence of oil, and the court should have sustained the demurrer to the evidence. For its failure to do so, the judgment is reversed.

All concur.