155 Mo. App. 352 | Mo. Ct. App. | 1911
This is an action for personal injuries plaintiff alleges were caused by the negligence of defendant in the operation of one of its trains. The answer contains a general denial and a plea of assumed risk. The cause is here on the appeal of defendant from a judgment of eight hundred dollars recovered by plaintiff in the circuit court. The injury occurred October 24, 1907, on defendant’s right of way, at a point about two miles west of Easton and eleven miles east of St. Joseph. Defendant was widening its railroad and plaintiff and his team, together with other men and teams, were working with scrapers enlarging the embankment. The railroad was being Operated and many trains passed daily. For east-bound trains the track was on an up grade and reverse curves added to the work of locomotives pulling heavily loaded freight trains. A meat train of twenty-five or thirty cars came from the west at about two o’clock in the afternoon and when its locomotive was nearly opposite one of the scraper teams (not plaintiff’s) — a team which happened to be facing west — took fright, wheeled around and ran away. Plaintiff, who was east of this team, driving, his own team, which was headed east, was struck by the runaway team or scraper knocked down and injured.
The petition alleges “that the defendant’s agents and servants managing its said railroad and in charge of locomotive engines and trains running thereon, oh said 24th day of October, 1907, along and by the place where the plaintiff and others were at work as aforesaid did carelessly and negligently and unskillfully conduct themselves in managing a certain locomotive engine
It will be observed the gravamen of the cause stated is negligence in allowing the engine unnecessarily to emit steam in a volume to produce a loud, unusual noise. It is not charged that defendant negligently failed to avoid frightening the horses by discontinuing the noise after the engineer saw, or by the exercise of reasonable care should have discovered that the noise of the escaping steam was terrifying the horses and,-if continued, would cause them to run away. In the instructions given at the request of plaintiff, the court enlarged the scope of the cause of action by including negligence of the character just described. This was error. No rule is better settled than that which holds a plaintiff to a recovery only on the cause of action averred. Where he specifies the negligent acts of which he complains he cannot recover on acts not included in his specification. [Orcutt v. Century Bldg. Co., 201 Mo. 424; Hamilton v. Railway, 114 Mo. App. 504.]
Plaintiff has adduced no evidence to establish the second and third of these elements, and we hold the learned trial judge erred in not sustaining the request of defendant for a peremptory instruction. The relation between defendant and plaintiff was that of master and servant; and the respective duties of the parties were analogous to those existing between defendant and its section men. Defendant had the right to run its trains past the place where the laborers were working and it was their duty to keep themselves and their teams out of the way of trains. The risks of injury from passing trains operated in the usual manner were natural and inherent risks of the employment and, as such, were assumed by the servants. Knowing that men and teams were at work on the embankment it was the duty of engineers of passing trains to maintain a reasonable lookout and not wantonly or even negligently to injure a laborer imperiled in a manner to disclose his peril; but, as we have said, no such breach of duty is alleged and, consequently, is not before us for consideration. The evidence shows beyond reasonable doubt that the noise which frightened the team was not unusual or unnecessary. The engine, in pulling a load up grade, was making steam ánd even if, as plaintiff contends, the steam which produced the noise came from the cylinder and not from the channel cocks, the inference that it was unnecessary is too weakly supported by proof to be entitled to serious consideration. Witness after witness introduced by plaintiff, as well as by defendant, say that the escape of steam in the present instance differed in no way from that of other trains going up grade and that the noise was the usual noise produced by such trains. To hold that plaintiff has a cause of action
The injury of plaintiff being due to one of the natural risks of his employment and not to negligence as averred, he cannot be allowed to recover. The judgment is reversed.