259 Mo. 109 | Mo. | 1914
Plaintiffs, as the minor children of Henry A. Patrum, a brakeman on a freight train, employed and killed by defendant while in the line of duty, sue for his death.
Deceased, a widower, 43 years old, long in service as a railroad man and experienced in the work and duties of a brakeman, was killed at Mansfield, Missouri, on the tenth day of August, 1906. Plaintiffs had a verdict for $5000 damages, but thereof entered
The specific allegation of negligence as pleaded in the case, coupled with a general statement of the facts, is thus stated in the petition:
“That said Patrum in the performance of his duty, and while in the line of his work as such brakeman, climbed upon said rear car for the purpose of setting the brake thereon and'stopping said car; that while he was so engaged, and while he was on the top of said car setting said brake, the agents, servants and employees of defendant engaged with him in handling said engine and cars, they then knowing that the said- Patrum was in such position and so engaged, negligently and carelessly drove said engine against the other of said cars which were between the engine and the car on which the said Patrum then was as above stated, with such force as to drive said car against the car on which the said P'atrum was engaged in setting the brake; that the impact of said cars so driven together was so sudden, forceful and violent that as a result thereof the said Patrum was thrown from said car to the track, one of said cars passing over his body, so injuring him that as a result thereof, he died.”
The facts in brief as developed by the testimony offered by plaintiffs (the defendant offered none, merely contenting itself with demurring to that offered by plaintiffs), are about as follows: There are at Mansfield on defendant’s line of railroad, three tracks, called in the record the “main track,” “passing track” and “stock track.” The train on which Henry A. Patrum (hereafter for brevity called the deceased), was employed as a brakeman, stopped on the day that he was killed, on the passing track, for 'the purpose, among others, perhaps, not here pertinent, of picking up a stock car loaded with hogs belonging to one W. J. Tripp. The engine was cut off from its train and run over to the north end of the stock track for the purpose of doing the switching made necessary in coupling on to and in picking up the carload of hogs. There was upon the stock track, besides the carload of hogs, at least one other car which was empty. By large inference other cars were thereon, but whether there were or not, such other cars cut but little figure in the case. This stock track was on a grade, the south end being lower than the north end, on which the engine came in, but what per cent the grade was nowhere appears in the record. In picking up the stock car it became necessary, as the witness Yosbury (who was conductor on another freight train which had halted on the main line), says in his testimony, to make three couplings. In this work Yosbury, who desired to use the same tracks for switching, was assisting Young, the head-brakeman, and the deceased. They were attempting to make at least two of these three couplings at once. At the first attempt one coupling was made by the head-brakeman Young, but Yosbury failed to make his, thus necessitating the backing up of the engine and the cars attached thereto by the first coupling, and a second attempt was made. By reason
The defendant as stated put in no testimony whatever but merely interposed a demurrer to that offered by plaintiffs. The bone of contention in the case
Some questions are raised as to the introduction of testimony, as also of the giving of instructions and of the sufficiency of the charge of negligence in the petition, but these we shall discuss in the opinion, if we shall reach them.
Upon this point plaintiffs offered four witnesses, one of whom was F. C. Yosbury, the conductor on the waiting freight train; another was W. M. Young, the head-brakeman upon deceased’s train, both of whom were assisting deceased in doing the switching about which he was killed. We need not refer to the testimony of these witnesses, except to say that they both testified that in making the coupling by which the stock car was thrust against the empty car and deceased was caused to fall, there was nothing out of the ordinary; that this work was done just as it is ordinarily
The witness Tripp, the owner of the hogs which were in the car that ran over deceased, was riding in the engine at the the time of the impact. He only says as to the nature of this collision that he “considered it a hard jolt.” ' On cross-examination he says that there had been already made two or three attempted couplings, and that the concussion in question which caused the falling of deceased, was a good deal harder. But being asked as to whether it was harder than necessary or not, he answered that he would not say, but that he considered it too hard, and that he thought defendant was handling his hogs hard. This witness also admitted that he had had no experience as, a railroad man, but that he had been around the yards a good deal and had shipped
One J. A. Johnson, an experienced freight conductor, employed .by defendant company, who was not immediately present at the time the deceased was killed, was called by plaintiffs, apparently as an expert witness, and who testified that in his opinion it would be necessary to drive a car eight or ten feet in order to make such a coupling as was. made on the occasion in question; that such coupling could be done closer, but that that was the ordinary distance used. The appositeness of this statement arises from the fact that other evidence in the case showed that the empty car after being hit in the first attempt to couple ran some fifty feet (down grade) and the stock car some ■ six or eight feet less. Being further asked as to the amount of care usual and customary in making couplings and switching while brakemen are engaged in setting brakes and in known positions of danger on freight trains, he answered that the usual custom was to “slam into them and make the coupling as quick as one can; we never look to see where the brakeman is or what position he is in. ’ ’
This is the whole of the pertinent testimony upon the identical point in issue, as this record discloses it to us. The testimony of Johnson, in our view, does not aid the plaintiffs. Its pertinency to the facts and conditions is difficult to see. While it may be true and be conceded for the purposes of this case as true that ordinarily it will be necessary only to drive a car
The witness Tripp admits his lack of experience, and inability to qualify as an expert. Is his expressed opinion that it was a hard jolt, or to use his own words, that “he considered it a hard jolt,” of sufficient weight to prove want of the ordinary care required here? It has been often said that it is not (Ray v. Railroad, 147 Mo. App. 332; Wait v. Railroad, 165 Mo. 612; Hedrick v. Railroad, 195 Mo. 104; Hawk v. Railroad, 130 Mo. App. 658); and when we have reference to the fact that he refused to say that this impact was harder than necessary, but merely contented himself by saying that he ‘ ‘ considered it too hard, ” it is fairly clear that his testimony can have but little if any weight. It is but the opinion or conclusion of a non-expert witness, which is ordinarily not even admissible.
Our Court of Appeals has ably and comprehensively defined, but without carefully distinguishing assumption of risk from so-called assumption of risk, in the case of Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, l. c. 307, thus: “The servant, upon entering the service of the master, impliedly assumes by his contract of hire, for the same compensation, the hazards which result from such risks as are ordinarily incident to the employment in which he engages, and in addition to these risks, ordinarily incident, etc., he also either by entering or continuing in the service and using, without complaint, defective machinery or appliances, or without complaint, continuing to labor in an unsafe or dangerous place, assumes the risks of such defective machinery or appliances or unsafe or dangerous place, provided he knew not only that the machinery or appliances were defective or the place unsafe, but also knew and understood and appreciated the dangers which were liable to result therefrom.”
Likewise it was said in the case of Duffey v. Consolidated Block Coal Co., 147 Iowa, l. c. 228, as follows: “The term ‘assumption of risk’ has come to be used in a twofold sense. It is often said that an employee assumes the ordinary risk that is incident to his employment. This form of assumption of risk is often pleaded by defendants in personal injury cases, although it is quite unnecessary to do so. Assumption of risk in its true sense has reference to those risks arising out of the negligence of the master when such negligence is known to the employee, and the danger therefrom appreciated by him. In the first form herein indicated a specific pleading of assumption of risk of the ordinary dangers incident to an employment is a mere amplification of the general denial, and adds nothing to it in a legal sense. In the second form herein in-
In the case of Martin v. Light Co., 131 Iowa, 724, l. c. 735, it was said: “The very common use of this phrase with reference to two widely different legal propositions is doubtless responsible for the confusion here existing. "When a servant enters the employment of a master he is presumed to have taken into consideration such danger and exposure to injury as is naturally incident to or connected with such service, even when the master has exercised all reasonable care for his servant’s safety. . . . This so-called ‘assumption of risk’ inheres in the contract of employment ór in the .relation of master and servant and need never be pleaded as a defense. A simple denial of the charge of negligence raises the question of this assumption sufficiently for all purposes of the case.”
In a very learned and comprehensive note appended to the case of Scheurer v. Banner Rubber Co., 28 L. R. A. (N. S.) 1221 and 1217, apposite to both points here under present discussion, it is said: “Assumption of risk, as applied to the ordinary risks of the service, is merely a rhetorical phrase used to connote the idea that the master is not an insurer against injuries resulting from dangers' which cannot be removed by the exercise of due care upon his part. In the second sense, assumption of risk has a vastly different significance; it implies negligence on the part of the master and a prima-facie liability, but it also implies a waiver of the effects of that negligence if it injures the servant. It is an affirmative defense to rebut that prima-facie liability due to proof of the master’s negligence. Assumption of risk in the first sense is not a distinct proposition of law, but merely a'mode of expression which adds nothing distinctive. In the second sense it is one of the fundamental principles of the law of master and servant, and is relied upon by the master to relieve himself from the prima
And on said page 1217 preceding this the same learned author of tMs note, said: “But in many cases tMs becomes an important question as a matter of pleading. The rule is universal that the servant must allege and prove that his injury was not due to one of the ordinary risks of the service, or, in other words, that the master had been negligent. On the other hand, the weight of authority is to the effect that assumption of risk, as used with reference to risks created by the master’s negligence, is an affirmative defense and consequently must be pleaded and proven by the defendant. ’ ’
So much we have said here in no desire either to presently change the Missouri view of these questions or to unduly criticise it, but merely to explain our consideration of assumption of risk upon a general denial wMch, unless we note that by the use of this expression in this case, we refer to the ordinary hazards of a dangerous vocation absent negligence of the master, might appear both illogical and' erroneous. The facts of this case do not require any criticism of the Missouri rule, for the defendant offered no evidence whatever, relying upon its demurrer to that offered by the plaintiffs. If plaintiffs’ evidence discloses negligence, tMs judgment should of course be affirmed; if it does not we must reverse it.
Granting for the sake of argument (because what we say is not intended to be a close, careful statement of the rule), that the doing of this coupling by which deceased lost his life in an unusual way by the striking of one car with another in a manner unnecessarily hard, or harder than the circumstances and conditions presented reqmred — the dangerous position of deceased being kept in mind and known to the servants of defendant — constitutes such negligence as to be actionable; we are yet from this record unable to say
We must take the law as we find it, not as we would wish it to be. The matter of compensation to the minor children of a father killed while engaged in hazardous employment for the benefit of the public 'at large, in an unfortunate case such as this, is a matter presenting crying equities to the Legislature, which body can alone afford relief.
We are unable to see anything under the facts of this case as we read them in the record and as we have tried to present them here, which distinguish it from the cases which we cite and which forbid recovery upon the doctrine of assumption of risk, and it therefore follows that this case should be reversed, and it is so ordered.