170 Mo. App. 514 | Mo. Ct. App. | 1913
This is an action to recover damages for personal injuries plaintiff alleges were caused by negligence of defendant. The injury occurred November 5', 19091, while plaintiff was working as a common laborer at a coal mine operated by the Eombauer
On the day preceding the injury the car in question was brought down from “the hole” to the “tip-, pie” and loaded in the manner described, after which it was run a short distance out of the “tipple” and allowed to remain over night on one of the sidetracks. The brake was set and the wheels were chocked. A fellow-servant of plaintiff brought the car from “the hole” and handled the brake during the process of loading and removing the car from the “tipple.”
The superintendent of the mine, introduced as a witness by defendant, testified that the duty of ascertaining whether or not cars provided by defendant were supplied with adequate brakes devolved on the laborers who handled the cars and that it was the practice of these men tO' run down the hill without loading cars found to have brakes which would- not hold. We quote from his testimony:
“Q. What would you say as to the practice of the men there running cars by when they found they had defective brakes? 'A. Why, it was generally left to their judgment. If in their judgment the brake was not sufficient to hold they would let it through and drop it by.
“ Q. How generally was that known, if you know? A. It was generally known amongst the employees and men that were handling the cars.”
The petition charges that defendant was negligent “in allowing said defective car to be placed in the above-described switch yards while in such defective condition as above described, well knowing at the time of the placing of said car at the place, in said swtich yards, the purpose for which the same would be used
The answer, in substance, is a general traverse. [Ramp v. Railroad, 133 Mo. App. 700.]
At the request of plaintiff the court gave the following instructions: “1. The court instructs the jury that if you find and believe from the evidence that the defendant, the Quincy, Omaha & Kansas City Bail-road Company, at the times alleged in plaintiff’s petition, operated and maintained the coal spur leading to, and the switch yard at the Bombauer Coal Company’s mine No. 2 in Adair county, Missouri, and that said switch yards were located on an incline or grade sloping towards the main coal spur, and that the defendant railroad company furnished and set out cars, from time to time to be loaded with coal at said mine and that said cars were left in a string at the upper or highest end of said switch yards by the defendant, its agents or servants, and that workmen in and about said mine who were in the employ of the Bombauer ■Coal Company were required to switch said cars onto the various switches and run them to the chutes of said mine and after being loaded were moved on down said switch tracks, and that the only means of handling said cars was by means of the hand brakes thereon, and that sometime prior to the fifth day of November, 1909, the defendant by its officers, agents or 'servants, carelessly and negligently permitted and allowed a car with a defective brake thereon, to be placed on said switch yards to be used as above described and that the condition of said brake was known to defendant or by the exercise of ordinary care would have been known, and that on or about the fifth day of November, 1909, this plaintiff while in the discharge
“2. The court instructs the jury that if they should find and be for the plaintiff that they may take into consideration in assessing his damages, the mental and physical pain and suffering endured by plaintiff since said injury in consequence thereof, the character and extent of said injury and its continuance, if permanent, together with his loss of time and service. And you may find for him in such sum as in the judgment of the jury, under the evidence, will be a reasonable compensation for the injury not to exceed the sum of twenty thousand dollars.”
The jury returned a verdict for plaintiff in the sum of five thousand dollars and after its motion for a new trial was overruled, defendant appealed.
At the close of the evidence of plaintiff and again at the close of all the evidence, defendant requested the court to direct a verdict in its favor. The requests were refused and these rulings of the court are attacked on the ground that the evidence exonerates defendant from the accusation of negligence that caused the injury and discloses that plaintiff’s own negligence directly contributed to his injury.
The first question we shall discuss is whether or not the act of defendant in sending to the coal company a car equipped with a defective brake was an act of negligence towards plaintiff, the servant of the coal company which appears from facts and circumstances disclosed in the evidence to have been the proximate cause of the injury.
Despite the absence of any direct relationship between defendant and the men at the mine, defendant, furnishing the cars for its own profit and for a particular use, the nature of which it had full knowledge, undertook to furnish the coal company with reasonably safe cars and by so doing became charged with the duty to the employees of that company to exercise reasonable care in their behalf. In the leading case of Roddy v. Railway Co., 104 Mo. 254, the facts bearing on the point under discussion are identical with those of the case in hand. The Supreme Gourt, after finding that the plaintiff had no contractual relation to the defendant, referred to the rule that “where-an act of negligence is imminently dangerous to the lives of others, the guilty party is liable to the one injured by the negligence, whether there be a contract between them violated by that negligence or not,” and applied the doctrine that where two parties engage in the performance of a contract for their mutual profit and each becomes the contractor of the other to perform
“We think each of these contracting parties- owed to the other, and his employees, the duty of properly discharging his part of the joint undertaking, in respect to any matter exclusively devolving upon him. Pickle had nothing to do with selecting or providing the cars. That duty was entrusted entirely to defendant. They were intended for the use of Pickle and his servants in discharging his part of the contract, and we think the obligation rested upon defendant to use ordinary care to provide such as would be reasonably safe for such use.”
This doctrine is reasserted and amplified in the later case of Young v. Oil Company, 185 Mo. 634, and is recognized and applied by this court in the recent cases of Fassbinder v. Railway, 126 Mo. App. 563 and Kiser v. Suppe, 133 Mo. App. 19. The duty defendant owed plaintiff was to exercise reasonable care to furnish him a reasonably safe car and the evidence of plaintiff shows a breach of such duty that resulted in the injury.
But it is argued by defendant that such negligence was a remote, not the proximate cause of the injury. It is pointed out that the duty of inspecting the car after it was set into “the hole” devolved on the coal company and it is urged that the negligence of that company in loading the defective car was the proximate cause. In support of this position counsel for defendant invoke the rule that “a prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible if there intervened between such
In Lynn Gras & Elec. Co. v. Meriden Ins. Co., 158 Mass. 570, it is said, “the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source, is the direct and proximate cause referred to in the cases.” [See also Driskell v. Ins. Co., 117 Mo. App. 362.]
It is not so difficult to define the rules of proximate cause as it is to make proper application of them to the facts of the particular case. As we view the facts of the ease in hand the important question is whether the negligence, if any, of the coal company in using the defective car should be regarded as the intervening act of an independent agency or as one related to or consquential upon the act of defendant in providing an unsafe car for the use of the servants of the'coal company.
The facts considered by the Supreme Court in the cases of Roddy v. Railroad and Young v. Oil Co., supra, in their relation to the questions under discussion are very similar to the facts of the present case. In the Roddy case the plaintiff was the servant of the quarryman to whom the railroad company furnished cars for the shipment of stone. The car in question had a defective brake and the plaintiff was injured in consequence of the defect. The Supreme Court, in effect, held that the negligence of the railroad company was the proximate cause of the injury
A careful analysis of this language, viewed in the light of the context, discloses that the court did not overlook the subject of proximate cause. The effect of the relationship of master and servant between the plaintiff and the quarryman and of the duty (the non-delegable duty) of the master to exercise reasonable care to furnish his servant with reasonably safe in-strumentalities with which to work, doubtless, was considered and the conclusion was reached that the railroad company occupied the position of an agency employed by the master to perform the duty he owed his servant and, as such, was answerable to the servant for the injurious natural consequences of its negligence in the performance of that duty. In substance the same view is expressed in the Young case where it is said: “If the defendant placed this obstruction there without the consent of the railroad, or maintained it there after it was notified by the railroad company to move it back, its responsibility to plaintiff’s husband for his injury was no less than if it had obtained consent. If it did so with the consent of the railroad company, then both the railroad and defendant were liable for such negligent obstruction, but the fact that the railroad owed its employees the duty of not subjecting them to such a'dangerous obstruction in no manner excuses defendant for so placing it by consent of the railroad company.”
Following these decisions we must hold that the acts of the defendant in furnishing a defective car and of the coal company in using it were not independent but were related causes, and that since the act of de
We do not agree with counsel for defendant that plaintiff was guilty in law of contributory' negligence. Viewing his testimony in the light most favorable to his cause, as we must do in the consideration of questions raised by the demurrer to the evidence, he knew from information communicated by his fellow-servant that the brake was not working well, but he also knew it had answered the purposes of bringing the car down to the “tipple” and of stopping it after it had been loaded and removed from the “tipple.” The jury had a right to conclude that a reasonable person in his situation would have considered that the brake was not so imminently dangerous that it could not be used in safety to stop the car. When first he saw the brake he was confronted by an emergency that called for prompt and immediate action on his part and afforded him no opportunity to make an examination of the defect. Whether or not he exercised reasonable care appears from the evidence to be a question of fact which was correctly referred to the jury for solution. The demurrer to the evidence was properly overruled.
The first instruction given at the request of plaintiff told the jury if they found for him “your verdict should be for the plaintiff in such sum as you may think proper not to exceed the sum of twenty thousand dollars.” This is the only reference in that instruction to the subject of the measure of damages and the objection of defendant is that it gave the jury “unlimited discretion in the assessment of damages” and did not restrict them to the limits fixed by the pleadings and evidence.
Among the cases cited by defendant in support of the objection is Hawes v. Stock Yards Co., 103 Mo.
In the later case of Browning v. Railway, 124 Mo. 55, the Supreme Court, again speaking through Judge Barclay, held that an instruction which permitted the jury to allow “such sum as in their judgment will he a fair and just compensation to her for the loss of her husband not exceeding the sum of $5000,” was not erroneous “in its general scope and if, in the opinion of counsel for defendant, it was likely to he misunderstood by the jury, it was the duty of the counsel to ask the modifications and explanations in an instruction embodying its views.”
No reference was made in the opinion to the Hawes case hut it was cited in the briefs and since the same judge wrote both opinions and they deal with precisely the same question, the conclusion is inevitable that the court in announcing and applying a different rule in the last case from that employed in the first intended to overrule the first decision.
In West v. Railroad, 187 Mo. l. c. 364, the Hawes case is cited apparently with approval.
In Smith v. Fordyce, 190 Mo. 1, the instruction on the measure of damages told the jury “that if they find a verdict for the plaintiff, they may allow him such damages not exceeding ten thousand dollars! as they .may 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 cannot be differentiated from those oppositely ruled upon in the Hawes and Browning cases. The Supreme Court in an opinion written by Judge GaNtt reaffirmed the Browning case holding that the instruction “was sufficient as a general instruction, and if there were any peculiar modifying or qualifying facts which the defendants desired the jury to take into consideration it was clearly their duty to have submitted them in an instruction of the court.’-*
An instruction substantially the same as this met the approval of this court in West v. Railroad, 187 Mo. 351, wherein it was ruled that such instruction was not amenable to the criticism passed upon that in the Hawes case. If defendant was not satisfied with the instruction as given because it was too broad, and likely to be misunderstood by the jury, it was the duty of defendant to ask for such modification thereof as seemed necessary to restrict it to- the proper elements of damage under the allegations in the petition. [Browning v. Railroad, 124 Mo. 55; Minter v. Bradstreet, 174 Mo. 491; Smith v. Fordyce, 190 Mo. 32.]”
It will be noted that- the court does not overrule the Hawes case in express terms but cites with approval the Browning and Smith cases which, in legal effect, do overrule it and in distinguishing it from the case before them the court, in substance, overrule it and substitute the rule of the Browning case which treats as mere nondirection an instruction on the measure of damages which merely by silence covers a
Point is made that error was committed by the court in refusing defendant’s first instruction but we Rave answered that point in our discussion of the demurrer to the evidence.
We find no prejudicial error in the record and the judgment is affirmed.