95 Mo. 662 | Mo. | 1888
Lead Opinion
Plaintiff recovered judgment for damages for personal injuries alleged to have been occasioned by the negligence of the defendant, from which judgment defendant has appealed.
The petition substantially sets forth as the cause of action, the following, viz. : That plaintiff was an employe of defendant as a yardman in Kansas City, and that, on the eighteenth of March, 1883, defendant was engaged in moving from its yard and depot in the western part of the city, a train containing an unusually large number of cars, and for that purpose was using an engine at the head of said train in pulling it, which engine was under the control of Jesse Langer as engineer, and also another engine at the rear end of said train pushing it; that, on account of the length of the train, and the nature of the track and surrounding obstacles, those employed on the hindmost engine could not see those employed on the front engine or front part of the train and viceversa; that said Langer, engineer in charge of said front engine, was incompetent, reckless, and negligent, and unfit for the position, of which defendant had knowledge; that defendant negligently and carelessly had and used as the rear car of said train, one, the bumpers or deadwoods of which were so constructed as to greatly enhance the danger of injury to any person coupling or attempting to couple the same to any other car or engine. It is further averred that it was the duty
During the trial plaintiff offered W. E. Bridges as a witness, who testified that he was the agent of defendant and in charge of the freight offices both at Twelfth street and Grand avenue ; that he kept a book containing a letter-press copy of reports of accidents to' persons and property ; that these reports were then sent to the division superintendent at Slater; that the custom was to make reports to him which he copied' into a book, which he . produced, and was asked to reacj in evidence from said book the letter-impression copies of certain reports of an accident. This was objected to- on the
It is next insisted that the court erred in refusing to-give an instruction asked by defendant in the nature of a demurrer to the evidence. In passing upon a demurrer to evidence the court is required to make every inference of fact in favor of the party offering the evidence which can reasonably be made. Buesching v. Gas Light Co., 73 Mo. 219. No controversy in this case-' is made by the evidence as to the following facts, viz.: That the train in question was being moved by am engine at Its front and in charge of Langer as engineer, and by an engine at the rear end of the train in charge of one Green as engineer; that the hindmost car in the train was a United States rolling-stock car; that while-the train was in transit plaintiff discovered that said, car was uncoupled, and undertook to couple it, and while doing so received the injury for which he sues. '
The disputed questions are : Was this United States' rolling-stock car extra hazardous to plaintiff whose duty it was to make couplings ? Was the engineer Langer in charge of the front engine incompetent and reckless, and if so did defendant have knowledge of it % Did said Langer, negligently and without warning, reverse his-engine, thereby causing, said train to be suddenly and>
Witness- Mallory testified that the United States rolling-stock cars are considered among all railroad men as man-killers, owing to the danger when a man goes to make a coupling; that the drawheads are constructed in ordinary western cars so that it gives a man from about twelve to fourteen inches room for his hand, but when he goes in between these cars he has no room at all. He has got to get underneath or on top. ' The western cars do not- have these side bumpers. All the western roads have a different kind of .car as to coupling. Any car with side bumpers is dangerous. These cars with bumpers are used on some eastern roads. The Hannibal & St. Joseph road had a good many of this kind of cars in use.
■ There is evidence on the other side tending to show that all the roads have carried more or less of - these United States rolling-stock cars and received them from ■other roads; that the Hannibal & St. Joe road had about three hundred of them leased. Plaintiff testified that the Chicago and Alton road had none of the United States rolling-stock cars and that said cars were more dangerous than others because of the construction of the •bumpers and deadwoods. As to his knowledge of the car in question he testified as follows: “This js the first United States rolling-stock car I had seen for a good while. If I had seen any I don’t recollect it, but not to the best of my opinion while I was switching there, until I got caught with this car.”
The evidence as to the incompetency of Hanger tended to show that he had been laid off by defendant for sixty days for having left his engine in charge of ■one Ketchum, who undertook to run it in his absence,
Witness Lee testified: “I have known Langer about three years ; he was liable to run into trains down there ; he is a reckless man in some respects. I have worked with him days and nights. I was always afraid whenever Langer came to work at night, because he would handle cars so roughly and I told the yardmaster so. I know something about Langer having been laid off by the company. He went over to play pool and he did not come round and he was laid off for five days for not coining round. The next I know Langer had a collision down at Big Blue, and he was laid off for five days. He came back and went to work again, and then got into trouble again and was laid off for thirty days or two-months.” In answer to the question what had happened when he was laid off the last time, witness said: “ He was playing pool or cards in a saloon. He is a reckless, risky man. Other people said he was reckless, ran too fast.”
E. Logan testified: “I am at present yardmaster for the Missouri Pacific. At the time of the Ketchum accident, I had charge of engine 47. Mr. Ketchum was in the engine as I found out afterwards ; this was about a year before March 18, 1883. I asked Mr. Yaughan what my sentence was, he said it ‘ was death.’ They stopped Langer’s and my pay and we had to quit; as to Langer’s reputation, as to being careful or otherwise, the management and handling of trains, there was always more or less kicking in the yards. There is nobody a good engineer in the estimation of the
As to the question whether the engine was reversed by Langer without warning, the evidence is also conflicting. On this point plaintiff testified as follows: Just as I was making the coupling the head man • reversed his engine and threw it over and shot them all back. I did not see him do it, but from the jar that was at the hind end I think the engine must have been reversed. A man can generally tell. He cannot tell if .it is from reversing the engine or setting the brakes. When a train is stopped suddenly you cannot always tell what is the cause of it. He must have thrown the • engine over from the jar there was around there. They generally whistle when they want brakes, when they are going too fast. It is not usual to slack a train by throwing tlie engine over,, and giving her steam backwards. The ordinary way for men on the train if they are going :around there too fastis to have the men set the brakes. The train was moving nine or ten miles an hour.”
Another witness testified as follows: “I was on this train, twelve or fourteen cars from the head engine, • on a car. I don’t know as anything happened more than he slacked up there. I can’t tell whether he threw Ms engine over or not. The cars started back. I could not see him handle his engine. I could not tell what • sent the cars back unless he reversed his engine. It is not customary for a man to stop trains that way. I did not see any brakes set. I did not get any signal to set brakes. The only occasion of such motion of the train that I know of would be to reverse the engine ; the train -was running seven or eight miles an hour. In my experience in railroading, there is not anything that would produce that kind of a jar except the reversal of the -engine.”
The evidence on this point is also conflicting. Langer, the engineer, testified that , he was running about five or six miles an hour; that he did not at any time reverse his engine; that he had no occasion to reverse it that morning; that it would not be safe to run at ten miles an hour, and said: “If I was in charge of the engine and running that way, I would call for brakes and reverse my -engine at the same time or shortly ‘ after-wards. I never ran down there as fast as seven or eight miles an hour. If is not customary for the engineer on a switch engine to give a signal to set brakes. If I was running ten miles an hour and wanted to check up suddenly and reverse my engine, I would regard it proper to give a signal for the brakemen to set brakes, and I would do it.”
It is claimed that the demurrer to the evidence ought to have been sustained, for the reason that it shows that plaintiff was injured by his own negligence in not having seen that the car in question was coupled before it was started in the train, and that having worked with Langer, and aware of his incompetency as an engineer
Under this evidence the question as to whether it showed contributory negligence was for the jury, and the physical fact stated that the car had been pulled from defendant’s yards to Twelfth street would seem to be a demonstration of the fact that the engine had been
The only remaining question is as to the action of the court in giving and refusing instructions, and it may be said that an examination of them shows that the jury are told that before they can return a verdict for plaintiff they must find that he was not injured by his own negligence, that Langer was an, incompetent engineer, of whose incompetency defendant had notice, and that Langer was guilty of an act of negligence in reversing his engine without warning, and throwing the cars suddenly and violently backward while plaintiff was coupling the car, and that this negligent act was the cause of plaintiff’s injury. The instructions fairly and plainly put before the jury the issues in the case, and in respect to the action of the court in giving and refusing instructions we see no well-grounded cause of complaint.
Dissenting Opinion
Dissenting. — Action for injuries received by plaintiff while in the employ of defendant. The petition, after the ■ usual formal averments, in substance declares that: On March 18, 1883, and for
The answer, after the usual formalities, denies that the train contained an unusual number of cars; admits' that Langer was engineer of its front engine, but denies that he was or had been incompetent and reckless in his management of engines, and that defendant knew of such incompetency or recklessness, and was guilty of negligence in keeping Langer in its employ. And avers, on the contrary, that he was a careful man, and a skilful and competent engineer; denies that it neglected to have a sufficient number of brakemen or employes on the train ; denies that Langer reversed his engine ; admits that plaintiff’s arm was caught and crushed while making the coupling, but claims it was so caught by reason of plaintiff’s own negligence and the careless manner in which he attempted to make the coupling; states that the rear car was one belonging to the Hannibal & St. Joseph Railway Company, and of the kind known as the United States rolling-stock cars; that it had been received by defendant from the Hannibal & St. Joseph Railway Company, and was attached to the rear end of the train to be transferred by defendant to such company ; denies that defendant was guilty of negligence in using the car in its train ; avers that plaintiff had been in its employ in and about its yards, etc., at Kansas City, for years prior to the accident, was well acquainted with
I. The testimony in this cause shows that at the time of the accident the car- being transferred to the-Hannibal & St. Joseph Railroad,, had been- received from that road ; that it was what is known as a- United States rolling-stock car; and that it was apparently a new car and in good condition,, and had' those bumpers or drawheads that are claimed to be dangerous-; that, with an interval of some three months, plaintiff had been employed in defendant’s yards for four years ; that he knew the car he was transferring was a Hannibal car and a United States rolling-stock car ; and the testimony also shows that during the time plaintiff was an employe of the defendant, ears like the one in question were being constantly received from the Hannibal & St. Joe, and from other railroads..
Our statute provides- that railroads- in this states
Besides, the plaintiff having been so long in the employ of the defendant, the very business of the road was of itself notice to him of the risks he would have to run and of -the perils he would have to incur in order to assist in the conduct of such business. That business notified him that, in the discharge of his duties, he would have to couple and uncouple cars from other roads; cars differing in their construction; cars with various deadwoods, some more dangerous to handle than others. Thus notified, and in the most practical way, of the dangers incident to his position, the law presumes that he accepted that position along with its
The controlling question, however, in this case is the one adverted to in the beginning of this paragraph, i. e., the duty imposed by the law upon the defendant to receive and transport cars, etc., from other roads. If such reception and transportation were not compulsory, the result, either from self interest or by law, would be the practical destruction of the commerce of the country. It would never do to stop the cars at the respective termini of the different roads, and there break bulk and transfer the freight to the cars of the connecting line ; and it was no doubt to facilitate the commercial interests of the country, and to place them upon an unchangeable footing, that gave origin to the constitutional and statutory provisions before noted. Whatever were the reasons which induced those provisions, it is sufficient to say that so the law is written.
In other states having statutes similar to our own, it has been ruled that compliance with those statutes constitutes no negligence on the part of railroad companies. Railroad v. Smithson, 45 Mich. 212; Baldwin v. Railroad, 50 Ia. 680. For these reasons I am of opinion that the sixth instruction asked by defendant
II. As already seen in the petition, there were three grounds of negligence upon which the plaintiff relied for recovery: (1) Using a defective and dangerous car; (2) failing to furnish a sufficient number of men with the train, and (3) retaining Langer, the engineer, in its employ, knowing him to be incompetent, reckless, and unfit for his position, and that, through ■ his carelessness and recklessness in reversing his engine at the time of the accident, that the injury complained of was inflicted on plaintiff. The first ground has been disposed of; the second was abandoned at the trial, and the third1 remains to be considered. Negligence, unaccompanied by injury, furnishes no ground of action, so that, admitting that defendant was negligent in retaining in its employ Langer, still unless he reversed his engine, thereby causing the accident, the defendant cannot be held liable.
Now, what is the testimony on this point? The plaintiff when testifying states that: “ Just as I was in the act of making the coupling, the head man reversed his engine, and threw it over, and shot them all back. I did not see him do it, but from the jar there was at the hind end, I think the engine must have been reversed. A man can generally tell. He cannot tell if it is from reversing the engine or setting the bralces. When a train is stopped suddenly, you cannot always tell what is the cause of it.”
Lee, the other brakeman, testifies: “I was on the train at the time of the accident, about four cars from the engine. When we got near Grand avenue, we were going in the neighborhood of ten miles an hour. I set brakes to hold them up for fear of a collision, and he threw the engine over as I began to set the brakes. It almost threw me down. I had no more set the brake up than he threw it over again, and then I let the brake off. * * * I set one brake and was setting another, when the accident happened. I was about four cars from the engine. I did not see him (Langer); I don’t know that he threw the engine over, but I can tell easily enough.”
Green, who was the engineer on the rear or pushing engine when the accident occurred, testified: That plaintiff “gave me a signal to stop when we got to the
Rankin, who was fireman with Green, testified, concerning the accident: “I do not know that the train slacked up at that time.” O’Brien, who was on the engine with Green, testified : “I saw O ’Hare give the signal for the engine to come ahead. * * * I did not see the train slack up any.”
. Fellman, who was Langer’s fireman, and with him on the train, testified: “I do not recollect whether the engine was reversed at the time of the accident to O’Hare or not.” O’Neill, who was nearest to Langer, either on top of the train or on the engine, testified: “I don’t think he reversed his engine on that train. * * * If the engine had been reversed, I think I would most likely know it. * * * He shut his engine off; this would cause the slack of the train to run towards the engine.” Langer, the engineer on the head engine, testified: “I did not reverse my efigine at any time. I had no occasion to reverse the engine at all, that morning.”
Taking the testimony as already detailed, taking Langer’s positive denial that he reversed his engine, and considering the fact that no one testifies 'to having seen him do so, though two men with him had ample opportunity of seeing Mm reverse his engine if that had been done, and considering the admission of plaintiff that the setting of brakes would cause a jar like that produced by reversing an engine, and that the brakes were set by Lee, it seems to me that the evidence was
III. But waiving this point, it does not appear that Langer, even if he reversed his engine, was aware that the rear engine had become uncoupled from the train, or that plaintiff was attempting to> couple it on. And the testimony is uncontradicted that it is not customary for the engineer of a switch engine to give any signal when about to reverse his engine, unless there is likely to be a collision with some train ahead.
In Kansas it has been decided in a well-considered case, a case held long under advisement, where neither statute, nor rules of the company, nor custom on the trains, require any signal or waving to the laborers on the train to enable them to hold fast or otherwise secure themselves to the cars, before reversing the engine, that if, in such circumstances, the engine is reversed and a laborer is killed in consequence of the concussion produced by reversing the engine, that it is not culpable negligence in the engineer to fail to give a signal before reversing his engine, and that the risks which an employe assumes, on entering upon his duties as such, include within them the one already referred to, Horton, C. J., remarking: “The engineer did not know that the deceased was on or near the rear end of the flat car when he reversed his engine ; the cabooses intervened between him and the flats, and he was unable to see the flats at all. * * * He was not bound to anticipate some accident not likely to occur, or to so conduct his management of the engine as to prevent an accident not likely to happen. * * * There are some risks an8 perils that are incident to the peculiar hazards of
Taking this case just cited as announcing the correct rule; it must be held that even if there is sufficient testimony to show that Langer reversed his engine, yet it was not culpable negligence in him to do so in the circumstances already set forth. This view of the matter condemns the second instruction given by the court of its own motion, which holds it negligence in the engineer to reverse his engine without giving- notice. For these reasons I think that an instruction in the nature of a demurrer to the evidence should have been given, admitting that there was evidence to go to the jury that Langer was careless or reckless as an engineer, and retained by the defendant after knowledge of such fact, because in this instance it does not appear that' carelessness or recklessness on his part caused the injury.
IY. I will now endeavor to ascertain whether such an instruction should not have been given, also, for a further reason: Plaintiff was foreman of the gang of brakemen; he had charge of the engine that morning; he was the only one who had charge ¡of the men at that time ; it was his duty to see that the rear car was coupled on to the rear engine when it left the Twelfth street yards ; this he did not attend to ; for when he attempted to make the coupling, he found the pin lying on the
V. Hanger had been working for the defendant as engineer in Kansas City, ever since May, 1879. In the same month plaintiff also commenced, working for defendant, and excepting three months, had worked four years for it. Plaintiff testifying, states: “Jesse ■Hanger had been working for the Chicago & Alton since I had, I guess longer. He had been running switch ■engines in the different yards; .the man was laid off once
In this case, the opportunities'plaintiff had of becoming thoroughly acquainted with Langer's standing, habits, and character as an engineer, were, from their-intimate association in the same yards for years, much better, it would seem, than those possessed by the common employer, and general reputation is recognized asoné means of knowledge in this regard. In support of the above position, see the following: Davis v. Railroad, 20 Mich. 105, and cas. cit.; Wood on M. & S., secs. 422, 423, 433; 2 Rorer on Railroads, 834; Frazer v. Railroad, 38 Pa. St. 104; Laning v. Railroad, 49 N. Y. 521; Wright v. Railroad, 25 N. Y. 562; Haskins v. Railroad, 65 Barb. 129. Upon this ground, also, a recovery should be denied the plaintiff; and it makes
For the foregoing reasons, I am of the opinion that the judgment should be reversed, and, therefore, dissent from the conclusion reached by the majority of the ■court.