146 Mo. App. 332 | Mo. Ct. App. | 1910
Lead Opinion
being disqualified to sit in this cause and Judges Nixon and Grav being unable to agree, by stipulation of attorneys, V. O. Coetrane was named as special judge to sit in the hearing of this cause.
This is an action for damages for the death of Henry A. Patrum, a brakeman, brought by his minor children through their curator and next friend, against defendant in whose employ Patrum was at the time of his death. At the close of plaintiff’s evidence, defendant asked a peremptory instruction that plaintiffs were not entitled to recover, which was overruled. Defendant not offering any evidence, the case was submitted to the jury under instructions, and a verdict in favor of plaintiffs was returned for five thousand dollars. Plaintiffs remitted five hundred dollars and' judgment Avas rendered for forty-five hundred dollars.
The jury having found the issues in favor of plaintiffs, the evidence should be viewed in its most favorable aspect to support the verdict. Before setting out evi
There were three tracks on defendant’s line of railway at Mansfield, Missouri; these tracks were .designated as “main line,” “passing track” and “stock track.” There was a slight decline in the grade towards the south.
On August 10, 1906, the freight train on which Patrum was a brakeman came in on the passing track and stopped. The engine was cut off from the train it was pulling and sent over to the north end of the stock track. There were two or more cars on the stock track, one a car loaded with hogs, and one an empty car, the loaded car being between the engine and the empty car. The train men intended to pick up the stock car. Another freight train had come up, which was standing on the main line at the time.
At least one attempt was made to couple on to the stock car before the accident occurred. In this attempt the stock car was pushed back against the empty car and the empty car commenced to roll south. Patrum, in the discharge of his duties, climbed upon the empty car and commenced setting the brake. While setting the brake he had hold of the iron wheel and was facing towards the north in a stooping posture. At this juncture, Young, the head brakeman, was at the north end of the train, signaling the engineer to back up, and Vosbury, the conductor of the train on the main line, was at the south end of the stock car. Tripp who owned the hogs on the stock car was in the cab of the engine. The distance between the stock car and the empty car was some six or eight feet. About the time Patrum brought the car he was on to a standstill (it not being clearly shown whether he had fully set the brake), and while he was in a stooping position over the brake, the engine was backed against the stock car and the stock car shoved over the intervening space and against the
Vosbury testified: “Q. When the coupling was made, how far in the rear of that car was the car on which Patrum was on? A. About six or eight feet. Q. When the coupling was made that car of stock, was that car of stock sent back toward the south? A. Yes, sir; they backed up about a car length or a car length and •a half. Q. How far did they back the car upon which Patrum got, before it stopped? A. About a car length or a car length and one-half. .' . . Q. What is the length of a car? A. About 30 feet, 32 feet and some 36 feet. Q. It would have been about 50 feet? A. Some 40 or 50 feet.” Young testified: “Q. You saw him (Patrum) in that position? A. I think I saw him in that position. Q. I will ask you whether or not you gave any signal to the man in charge of the engine which was handling this string of cars? A. When he was on top of the car? Q. Yes, sir. A. Certainly I did, when I went to make that coupling. . . . Q. Who was in charge of that engine? A. Mr. Howard. Q. Is he an engineer? A. No, sir. Q. In what capacity is he employed? A. A fireman. Q. Was the. •engineer on the engine at that time? A. No, sir. Q. Was there anybody else on the engine at that time? A. Not that I know of. Q. I will ask you, Mr. Young, when you gave this heavy signal to Mr. Howard, whether or not Mr. Howard backed up heavy and hard? A. Well, he struck the car a little bit harder than any •other time? Q. I will ask you, Mr. Young, to get the jury to understand it thoroughly, you say these cars were moved by this last stock car? A. Well, yes, about
Tripp testified: “Q. Did you see him (Patrum) fall off? A. Yes, sir, he was in this position (indicating) setting the brake and he went head down between the cars, and the man that was handling the engine says — he made the remark when Mr. Patrum fell, he said: ‘God damn it, we have killed a man,’ and I says, ‘What,’ and made from the engine. . . . Q. I will ask you how far this stock car and this empty car were driven by the last attempt to couple, how far were they moved? A. Well, as well as I remember, in the neighborhood of .as far as from here to the corner of the building, may be further (indicating). Q. Before they backed the last time, what was the distance between this stock car and the last car? A. I think something like a car length, something like that. . . . Q. I will ask you whether or not that blow which this string of cars struck this stock car and empty car was a hard blow, or a heavy one? A. Well, I considered it a hard jolt. Q. You considered it a hard jolt? A. Yes, sir.?’ Cross-examination: “Q. You don’t know whether it was struck with any more force than was necessary
The action is brought under the provisions of section 2864, chapter 17, Revised Statutes 1899, as amended by Session Acts of 1905, page 135, which provided if there was negligence the fact that it was the negligence of a fellow-servant is not a defense.
The main contention of defendant is that the trial court refused to rule that the chance of such an accident as happened was one of the risks that Patrum assumed, or that the question whether the defendant was liable depended on whether the engine and cars were handled in the usual and ordinary way. The trial court held that the defendant’s liability depended on whether the engine and cars were handled with ordinary care, that is with the care that prudent men would exercise under the same circumstances, and not upon whether they .were handled in the usual and ordinary manner. The standard by which the conduct of the defendant’s employees in this case should be ascertained and measured is that of an ordinarily prudent person under like circumstances. [Wilkins v. St. L. I. M. & S. Ry. Co., 101
' The difficulty we have had in deciding the case is due to the uncertainty in the evidence rather than to the rule of law that governs. A certain amount of bumping, jarring and jerking is well known to be incidental to the making up of trains, and under ordinary circumstances cannot be complained of. Negligence is not to be inferred from the mere fact that Patrum was thrown from the car by a sudden jar in coupling. And under the authorities in this State the testimony of Tripp, a non-expert, to the fact that the jolt was an unusual one, has little, if any, probative value. [Ray v. Chicago, B. & Q. Ry. Co., 126 S. W. 543.]
But we think that there was substantial evidence adduced tending to prove that the engine was driven back against the stock car and the stock car against the car Patrum was on with unusual, extraordinary and unnecessary force, such as is not usually incident to the careful and efficient making up of trains. The evidence tends to show that Patrum was known to be in a position where any sudden and unusually violent bump might be dangerous to him, and the engine was backed with such force as to drive the loaded car over six or eight feet of space and against another car and then drive both cars a distance of some forty or fifty feet, when it was not necessary to move such stock car over eight or ten feet to make the coupling. It is true that there was evidence tending to show that there was nothing unusual about this coupling, but the jury refused to find that such was a fact. Under such circumstances we cannot say that the jury was not warranted in finding that the engine and cars were handled negligently. If they were handled negligently, Patrum did not assume the risk of that negligence. [Tinkle v. St. Louis & S. F. R. R. Co., 212 Mo. 445; Doss v. M. K. & T. Ry. Co., 135 Mo. App. 643; Texas & P. R. Co. v. Behmeyer, 189 U. S. 468.]
The judgment of the trial court is affirmed.
Nixon, P. J., dissents; files opinion and requests the cause be certified to the Supreme Court, which is so ordered.
Dissenting Opinion
DISSENTING OPINION.
We are unable to agree with the opinion of the majority. The injury received was an incident to the service in which plaintiff’s intestate was engaged and arose from the risk ordinarily incident to the employment of a brakeman. The accident was caused by the coupling of cars of a freight train which is usually effected by thrusting or jamming them together, causing a violent jar or impact, and consequently in such act there would always be danger to a brakeman on the top of one of the cars setting the brake at the time of such coupling. The deceased brakeman had twelve or more years’ experience in the business and knew its risks and hazards. The law of the case, as we see it, is correctly stated in the following cases: Williams v. St. L. & S. F. R. Co., 119 Mo. 316, 24 S. W. 782; Young v. Mo. Pac. Ry. Co., 93 Mo. App. l. c. 275; Ray v. Chicago, B &. Q. Ry. Co., — Mo. App.-, 126 S. W. 543. Nor is much probative force to be attached to witness Johnson as an expert. It was not shown that he ever saw a car coupled on the grade at Mansfield where the accident occurred; nor did the hypothetical question state the length of the train or other conditions necessary to enable him to give an intelligent opinion.
We are of the opinion that the decision reached is in conflict with the above cases defining and applying assumed risk and the cause is accordingly certified to the Supreme Court for its decision.