190 Mo. 1 | Mo. | 1905
This is an action commenced in the circuit court of Jasper county, Missouri, against the defendants as receivers for the Kansas City, Pittsburg & Gulf Railroad Company, to recover damages for injuries received by the plaintiff while in their employ .as a car repairer.
The petition alleges the incorporation of the defendants as a railroad company, the appointment of the defendants Fordyce and Withers as receivers by the circuit court of the United States for the western district of Missouri, their qualification as such and their possession of the said railroad, its engines and cars at the times mentioned in the petition; that while said receivers were operating said railroad, plaintiff was in their employment as a car repairer, and as such it was his duty to go about the freight and passenger cars of the defendants and repair the same along the line of said railroad; that Joplin was and is a station on the line of said railroad, and near said city and station there was a switch leading from the main line of said road to a lead and zinc mine known as the Bankers Mine; that the said receivers were using said switch under the order of said court to haul cars of coal and other property out to said mine, and for other purposes; that from the place where said cars were left at said mine to be unloaded, to the main line of the road, was down grade so that cars left- standing on said switch at said mine, unless fastened in some way, would run down to the main line track and other switches with great force and speed, thereby placing plaintiff while employed in his work of repairingcars on said track in great danger, and placing all other employees of the defendants and passengers on said road in great danger from said cars starting from said point on said switch and running down and out upon the main line and switches with said great force and speed; that it was the duty of said re
The answer was, first, a general denial; second, an assumption of the risks by said plaintiff of said injuries; third, that the said car which collided with the train under which plaintiff was working was set in motion by the acts of third parties over whom defendants had no control, without the knowledge or consent of defendants or either of them.
Plaintiff’s reply denied all the new matter set up in the answer.
The cause went to trial and a verdict was rendered on the twenty-third of January, 1902, in favor of plaintiff for seven thousand five hundred dollars. At the same term of court motions for new trial and in arrest of judgment were filed, heard and overruled, and defendants duly excepted, and took their appeal to this court.
The evidence developed that the plaintiff was a young man twenty-six years of age at the time he was injured, and as a result of his injuries he had about an inch and a half of the bone taken from his arm between his shoulder and elbow, and that on account thereof he has no use of his arm below the elbow, and it hangs at his side perfectly useless to him; that prior to his in
At .the close of the evidence the court gave the- following instructions for the plaintiff:
*12 “1. The court instructs the jury that it was the duty of the defendants to furnish the plaintiff a reasonably safe place in which to perform his work, regard being had to the nature and character of his employment and the kind of work he was engaged in, and it was also the duty of the defendant to keep' its tracks, switches and cars in a reasonably safe condition so that plaintiff could perform his labor about them in reasonable safety, regard being had, as above stated, to the nature of his employment. And if the jury believe from the evidence that on the twenty-third day of October, 1899, and for some time prior thereto, the defendants had a switch leading from the main line, of their road near the station at Joplin, out to a place known as the Bankers Mine, and that cars left standing on said switch by the defendants, their agents or employees, were liable to escape from the persons moving the same, with the knowledge and consent of the defendants, and run down said switch and out on the main line of said road and other switches, at said station, then it was the duty of the defendants to have taken ordinary care and precaution to have so fixed its switch and cars on the same, if the same could be done by exercising reasonable care, so that if a car did escape on said switch at said mine, or get away from those in charge of it, it could not roll down said switch and out on to the main line and other switches of the defendant, if the jury believes by so doing it would probably endanger persons rightfully on said track or switches, and if the jury believe from the evidence in this case that the plaintiff under the direction of the conductor in charge of a freight train belonging to the defendants, and standing on a switch at the station at Joplin, went under said train for the purpose of repairing* a car therein, and that in so doing he was exercising ordinary care and caution, and that prior thereto the defendants, while operating said railroad through their servants or employees, had left a car standing on said switch, at*13 said mine, and that said ear was left there without the brake being set, or so loaded that the brake conld not be set or nsed in moving said cars, and that the defendants knew that the employees at said mine were liable to attempt to move said car, and that the defendants carelessly and negligently left said car standing in snch condition and at snch a point on said switch that if it started or was started by the employees at said mine, that it conld not be controlled and that the defendants carelessly failed to pnt in a derailing switch or nse any other means to prevent cars while so being moved from rolling ont on said main line, in case they escaped and that while plaintiff was at work a car, which had been standing at said mine, and which had been left standing as aforesaid, and without the brake being in snch. a condition that it conld be nsed, got away from the persons moving it and started and rnn down said switch and ont on to the'main line and then on to the switch where plaintiff was working and collided with the car he was working on, and thereby caused said car to rnn over the arm of the plaintiff and injure him, and that said injury was caused by the carelessness and negligence of the defendant in leaving said car standing on said track in snch a condition, and by their carelessness and negligence in failing to pnt in a derailing switch or using other means to prevent ears from rolling down said switch, then the finding should be in favor of said plaintiff.
“2. The court instructs the jury that ordinary care is such care as a person of ordinary prudence and caution would usually exercise under the same situation and under the same circumstances.
“3. In determining whether plaintiff exercised reasonable care in going under the car on the switch to repair the same under the circumstances shown by the evidence, you are instructed that he was only required to exercise such care as a careful and prudent ear repairer would have exercised under like circumstances.
*14 “5. The court instructs the jury that if they find a verdict for the plaintiff they may allow him such sum for his damages, not exceeding* ten thousand dollars, as they believe he has sustained by reason of the injuries, if any, to his left arm caused by the collision described in the evidence. ’ ’
The court gave the following instructions for the defendants:
“1. If plaintiff’s injuries were the result of a mere accident then plaintiff cannot recover. The court instructs the jury that they are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony, and if they believe from the evidence that any witness has wilfully sworn falsely to any material fact, then they are at liberty to disregard the whole or any part of the testimony of such witness.
“2. You are instructed that merely because plaintiff was injured while in the employ of the defendant does.not of itself entitle him to recover in this action, but before under any circumstances plaintiff can recover he must prove also by the greater weight of the credible testimony that his injuries were caused by the negligence of the defendant of the character pleaded in the petition and submitted to your consideration. If there was no such negligence, then your verdict must be for the defendant.”
The refused instructions will be noted' in connection with the assignments of error.
At the close of all the evidence the defendants interposed a demurrer to the evidence which was overruled by the court.
I. The stress of the argument for a reversal of the judgment in this case-, is that the demurrer to the evidence should have been sustained because there was a total failure of proof of the cause of action alleged, and not a mere variance which was not a surprise to defendant.
The petition by way of inducement avers the own
The court admitted testimony to show that the mining crew was endeavoring to move the car back a little to the west in order that that track might be moved farther away from the power house, and thereby permit the car to be moved on east to the mine, and in this connection offered evidence that it was the custom and habit of the defendants to place loaded cars for the use of the mine, on this switch or spur track, and to permit the mining crew to move said cars backwards and forwards thereon for their convenience in unloading the same. That the car was attempted to be so' moved did not and could not have misled or surprised the defendants at the trial, because the defendants alleged in their answer that it was set in motion by the acts of third parties, over whom they had no control, without their knowledge or consent. The testimony admitted by the court as to the attempt of the mining crew to move the car was introduced preliminary to' the evidence tending to show the three acts of negligence above set out upon which plaintiff based his right of recovery. That there was no failure of proof to show that the car was located at the brink of the down-grade leading west towards the main track without the brake having been set, and with the brake so covered up with
It is a settled principle of law in this State that if damage or injury “is caused by the concurring force of a defendant’s negligence and some other force for which he is not responsible, including ‘the act of God,’ or superhuman force intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage. It is also agreed that if the negligence of the defendant concurs with the other cause of the injury in point of time and place, or otherwise so directly contributes to the plaintiff’s damage, that it is reasonably certain that the other cause alone would not have sufficed to prove it,, the defendant is liable, notwithstanding he may not have anticipated the interference of the other or superior force, which concurring with his own negligence produced the damage.” [Brash v. St. Louis, 161 Mo. l. c. 438, and cases, cited.]
Able counsel for defendant earnestly and ingeniously labor to sustain the proposition that plaintiff’s cause of action rests entirely upon the allegation that the car started, and supplement the averment with the words, ‘ ‘ of its own accord, ’ ’ but in so doing they ignore the three plain assignments of negligence upon which the action is bottomed, in the absence of which, no injury would have resulted to plaintiff by the starting of the car which ran off of the spur track on to the main track and collided with the train under which plaintiff was working repairing a car for defendant. In such circumstances the fact that another element of causation intervened, to-wit, the attempt of the mining crew to move the car west a short distance to permit the track to be moved far enough from the power house to allow the car to pass on to its destination, the lumber yard of the mine, did not break the legal connection between the brakeless condition of the ear and the placing of it on the brink of the sharp down-grade toward the
’ Learned counsel for the defendants urge that because the car had stood there all day Sunday, the absence of a derailing switch was in no' sense the cause of the injury and say, “Suppose there had been a derailing switch, if the mining employees had desired to run this car out on the main track, what was to prevent them connecting upthederailer so that the car could pass over the switch?” and assert that no railroad company can be required to take such precautions as will absolutely prevent the possibility of accident from malicious interference with cars on its tracks, and- cite us to Fredericks v. Railroad, 157 Pa. St. 103 (22 L. R. A. 306). It seems quite obvious to us that this argument is de
Learned counsel for the defendants devote much time and space to the enforcement of the proposition that the master is not required to furnish any particular kind of appliances; that he has a right to transact his business, in Ms own way, and if he sees fit to use machinery of an old pattern, that it is not a matter of complaint for the servant. '"With tMs contention the plaintiff refuses to take issue, because he insists that the trial court did not hold to the contrary. The rule is well settled in this State that there is no obligation on the part of the master to furnish absolutely safe appliances, nor is a railroad bound to adopt every new invention, though an actual improvement it may be, but it is the duty of the company to use reasonable care and precaution in procuring and keeping its appliances in good condition and order, and it cannot remain wholly in
In these cases it is left to the jury to say whether under all the facts and circumstances it was negligence in the company not to have had a derailing switch at the junction of this switch track with the main track of the defendant’s line. There was evidence in this case tending to show that derailing switches were in general use by the defendants on their line of railroad at the time of the injury to plaintiff, and that it was' a common device used for the purpose of preventing cars escaping on to the main tracks from switches. The fact that there was no derailing switch was not negligence per se, and it was not so treated , by the court. As said by this court in Jones v. Railroad, 178 Mo. l. c. 548: “ Since the law imposes on the master no higher degree of care than that which it denominates reasonable, it does not require him to furnish absolutely safe or even, the best known appliances. Yet when his conduct in this respect is on trial, it is proper for the jury to know what appliances are in common use in that hind of business. It has been said by a very high authority that in the operation of a .dangerous business, the master is guilty of negligence if he fads to furnish the best, well known and reasonable attainable implement.” [Mather v. Rillston, 156 U. S. 391.] We do not understand that case as laying down any stricter rule in reference to the master’s duty in that respect than that it was to do all that a reasonably prudent master, mindful of the dangerous character of his business, would ordinarily do to protect the lives of Ms servants. That is the law in this State. We do not, therefore, say that the defendant in this cas© was negligent because the side track was not equipped with the derail switch, although it is quite evident that if it had been so equipped tMs accident would not have occurred. Therefore, the question -of whether the spur track in this case was a reasonably safe appli
In view of the foregoing conclusion it is unnecessary to discus's seriatim the various objections to the first instruction given on behalf of the plaintiff, inasmuch as it conforms to the views already expressed, with the exception of the last point made against it, which is, that it ignores the assumption of the risk by the plaintiff. It will be conceded that the question of assumption of the risk of this car running down on him while at work repairing a car in the yards near Joplin, by the plaintiff, was not presented to the circuit court in any instruction asked by counsel for defendants, unless it may be said it was included in the demurrer to the evidence. Treating it as presented by this peremptory instruction, we have no hesitancy whatever in holding that plaintiff did not, under the facts of this case, assume any such unusual and extraordinary risk. This identical point was ruled adversely to defendants’ contention in Jones v. Railroad, 178 Mo. l. c. 543, in which Judge Valliant, speaking for this court in banc, said: “Proof, therefore, of the mere fact that the servant was injured in the master’s service, is not sufficient to make out a prima facie case for the plaintiff. To that extent, the authorities cited in the brief for appellant sustain those propositions. [Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. 111.] But when cars are found running loose and unattended on the main track at a time and place when and where they are liable to cause the wreck of a regular train, it can not be said that the danger so incurred is one of the
II. Error is assigned in the admission of testimony. We have already held that it was competent to show the absence of the throwing off or derailing switch; the fact that such a device was in common use by the defendants, themselves, on the same railroad; the purpose
There was no error in permitting Eagan to testify as a practical railroad man, engaged in the construction and repairing of tracks, laying new tracks. It was not necessary that he should have béen a scientific railroad man to testify what the purpose of a derailing switch is or where it should he placed. Its purpose is so simple and it is so common that three years’ experience in the construction of railroads ought to suffice to teach a man of ordinary intelligence that if there ever is any use for such a device, the junction of this spur track with defendants’ main track was a proper place for it.
There was no' impropriety in permitting Beasley, who had a contract with defendants for loading its cars with gravel, to detail how the cars were set in on this spur track and for what purpose, and how he moved the same back and forward in loading them. It tended to disprove the claim of defendants that they did not permit any one but their switching crew with an engine to move cars on this spur track. It went to show that the defendants did know that parties were moving cars about on this .spur track from place to place. The objections to.the introduction of evidence were properly overruled.
III. The further insistence is that the court erred in refusing defendants’ instructions. Of these the fourth and seventh asked the court to declare the law to be that if the accident was caused by the act of the mining company’s employees in negligently moving the car, then plaintiff could not recover. They entirely ignore the defendants’ own negligence in leaving the car with the brakes loose and heavily laden on the brink •of a sharp down-grade, and the fact that the mine employees were constantly moving cars set in for the mine, back and forward on this track, and that their negligence concurring with that of defendants would not relieve the latter of their responsibility for their own
IY. The fifth instruction for the plaintiff reads as follows: ‘‘ The court instructs the jury that if they find a verdict for the plaintiff, they may allow him such damages not exceeding ten thousand dollars as they believe he has sustained by reason of the injuries, if any, to his left arm caused by the collision described in the evidence.”
This instruction is assailed on the ground that it does not define, the elements of damage which the jury should take into consideration in arriving at their verdict. No instruction on the measure of damages was asked, by the defendants and no attempt was made by the defendants to point out the proper elements of damages in such a case or to modify the general language of the instruction given for the plaintiff. In Browning v. Railroad, 124 Mo. 55, an instruction was given that if the jury found for the plaintiff they would assess her damages at such a sum as in their judgment would be a fair and just compensation for the loss of her husband, not exceeding five thousand dollars. In that case, as in this, it was urged that the jury were not properly instructed as to the measure of damages, and Hawes v. Stockyards Co., 103 Mo. 60, and McGowan v. Ore & Steel Co., 109 Mo. 518, were relied upon as sustaining the objection, but it was said by this court: “The de
In Wheeler v. Bowles, 163 Mo. 398, where tbe plaintiff sued for damages resulting from tbe dislocation of her shoulder tbe only direction was that if plaintiff bad become permanently injured, lame and disfigured by such dislocation, tbe jury would find for tbe plaintiff in tbe sum not exceeding tbe amount in tbe petition. That instruction wa.s challenged because the elements of damages were not given to tbe jury, and in answer to that contention it was said: “It is urged as error that tbe circuit court did not instruct tbe jury as to tbe rule by which they should estimate plaintiff’s damages. As to this point it is only necessary to remark that this is a civil action and mere non-direction is no ground of error in this court. Tbe defendant did not submit any instruction on tbe elements of damages; neither did plaintiff.. If defendant desired tbe jury restricted to certain elements, be should have offered, an appropriate instruction on that subject.”
As to the amount of the verdict itself, the evidence shows that the plaintiff was a young man 26 years old, strong and active and holding a lucrative position and by reason of this injury he has permanently lost the use of his left arm. Taking into consideration his age, health and capacity to earn a livelihood, and the probabilities of life, and that he must henceforth go through the world hopelessly maimed, and that by the loss of this arm he is necessarily debarred from his profession as a car repairer, it cannot be said that a verdict of $7,500 is such as to shock the sense of justice.
In Bolton v. Railroad, 172 Mo. 92, the plaintiff was a farmer thirty-five years of age and by accident both bones of his lower limb were broken and the flesh lacerated. Fifteen months after the accident a large bone had not united, but the surgeon was of the opinion that the bone would finally unite. It was held that the verdict of $9,000 was not so excessive as to authorize a setting aside of the verdict. In Henderson v. Kansas City, 177 Mo. 477, a boy nineteen years of age was deprived of his right arm and suffered great physical and mental pain. It was held that a verdict of $8,000 was not excessive. In that case a number of verdicts that had been sustained by this court as not excessive were cited, among others, Dougherty v. Railroad, 97 Mo. 647, in which a judgment for $12,000 for the loss of a left arm was affirmed.
We think there is nothing in the amount of this ver
The judgment is affirmed.