257 Mo. 87 | Mo. | 1914
Plaintiff sued in the Jackson Circuit Court for $50,000 damages for personal injuries. Issue was joined on an amended petition. Presently plaintiff recovered judgment for $10,000, and defendant appealed.
A word on the pleadings will be helpful, thus: Plaintiff, a freight brakeman, complained in his petition that he was employed on one of defendant’s freight trains that was through negligence so heavily loaded, operated on such schedule and run at such speed that it was necessary for him, in the due course of his employment, to alight from the engine of his train while in motion for the purpose of throwing a switch, etc.
(Note: The question whether the train was so negligently loaded, scheduled and run as to cause plaintiff to alight from it while in motion was not submitted to the jury as a ground of liability.)
The petition next charged that defendant “negligently maintained its track, roadbed and right of Avay at and near such point” (to-wit, a way-station, Drexel) “so that the same had holes and depressions therein and ivas [sic] not reasonably safe for the use
The answer was a general denial plus pleas of contributory negligence and assumption of risk.
The reply took issue on the new matter.
We allow ourselves a foreword, thus: There are record signs of a mistrial below. So, this cause, a difficult one, having been thoroughly argued twice by both sides, we believe, in Division and once in Bane,we are warned by respondent’s veteran and able counsel as follows, to-wit: “There comes a time where patience ceases to be a virtue. ’ ’ There were signs beyond that admonition, both in briefs and in oral argument by respondent,’ showing that as “patience had ceased to be a virtue” impatience had taken her place and was relied on as one. Whether impatience is ever a virtue at the bar or on the bench' of an appellate court is doubtful. The Chinese have a proverb' running: Patience and the mulberry leaf become a silk gown; and there is high authority from no less a lawyer than Paul that: tribulation worketh patience; and patience, experience; and experience, hope; and hope, etc. Observe, all that category of related virtues is handy always and nowhere more so than to bench and bar.
In a strong brief respondent took the hazardous course of not making a plain, concise, colorless statement of fact and issues. The statement submitted carried the color of comment with almost every fact —comment argumentative in character and having no legitimate place in a statement of facts and issues. A fact stained with comment is an elusive and misleading thing. Accordingly, our brother who first wrote this case in Division was driven away from respond
There is no assignment of error here on any quesition of pleading, none on any in the admission or exclusion of testimony and none on any on the giving or refusing of instructions on either side, save one, to-wit, the refusal of an instruction prayed by defendant in the nature of a demurrer to- the evidence at the close of the whole case. Defendant demurred to the evidence at the close of plaintiff’s case,, and again at the close of the whole ca.se, and, in its motion for a new trial and in arrest and now in its briefs, it stands on the single blunt proposition, to-wit, that on the facts plaintiff made no case for the jury.
Attend to the facts.
Drexel is a way-station on defendant’s line south of Kansas City at a point hard by where Cass county corners with Bates and the line dividing Missouri from Kansas. At the times in hand the United States census shows it was a village of between four and five hundred souls. There are estimates by witnesses higher than that. The south line of the village is a public east-and-west road cutting the railroad at right angles and running about one-fourth of a mile south of the station. 'Where this dirt road crosses the railroad there is the usual cattleguard and wingfence. Something less than a hundred feet north of this cattle-guard, in the outskirts of the village, is a switch, and there a passing track commences. Save that passing
The main track is on a “little curve,” and there is some.slope from the west to the east, so that the roadbed is a bit higher above the natural level of the ground on the west than on the east. "We take it from the record that on the west there is a little cut and the usual drain. The roadbed is what might be called a dump, two, or three, or maybe four, feet high and the rise of eight feet across from shoulder to shoulder, the slope a gentle one. The ties on this
Did plaintiff get off in the center of the track or to the east of the center? Considering the danger of a misstep or fall, this is material. Plaintiff alone tells the story, for no eye saw him. The record is confusing because it contains plaintiff’s testimony delivered on three separate occasions: once by deposition, once at a mistrial and again at the trial, and he does not always use the same words. But putting all he said at each time he spoke side by side it is clear he got off, and means to say he got off, between the center and the east rail. He says so repeatedly. He stood on a step on the east side of the pilot about over a point half way between the center and the east rail. So standing, he sprang quickly£ £ straight ahead. ’ ’ There is nothing- to show he could have reached the center if he had tried. Once or twice he used the word ££center” or “middle” in the sense of the entire space between the rails, and without giving all his testimony we copy this, as a fair summary and meaning of it:
*103 “Q. You mean the middle of what would he the center of the track and the east rail? A.. Yes, sir. . . . You don’t exactly step in the center of track, you step over like this, right near the east rail, you don’t step right in the center.” And again: “Q. And this step you are talking about, runs about half way from the heel of the pilot to the nose? A. Yes, sir. Q. On both the engineer’s and fireman’s side? A. Yes, sir. Q. Now how can you step from that into the center of the track? A. You don’t exactly step in the center of the track, you step over like this, right near the east rail — you don’t step right in the center. Q. Then this step on both sides of the pilot is about over the rail isn’t it? A. Not all of it; one end of it about strikes the rail. Q. The outer end would be over the rail? A. Yes.”
Let us recur to what plaintiff did and how he did it. He says he sprang off straight ahead on the east side of the pilot quickly as if in a run or preparatory to a run. His first step was on an even surface. He did not know whether it was a tie or on the ground. He then claims to have taken either one, two, three or four steps. He puts it differently at different places in his testimony; some places he says “two, three or four,” then he says “somewhere along” one or two, but the sum of it all is as we have said. His evidence is to be taken with the steady and guiding fact that before he fell he did not get five feet beyond the nose of the engine and in the line of the engineer’s vision. For all practical purposes, he fell at once. When he stood on the pilot step he had not made any use of his red lantern to spy out the ground ahead between the rails or on either side of the rails. He says he knew nothing about such conditions and made no attempt to ascertain. When he fell he stepped in what he calls in some places a “hole” and elsewhere a 11 depression. ’ ’ He explains that to be a place between the ties where the ballast was ’out. His impression is
Up to this point in this statement there has been no mention of holes or depressions in the track except as derived from the sensation of plaintiff in stepping into one in the, darkness. His case in this particular was fortified, if at all, by the testimony of the fireman of train number fifty-three, a Mr. Scott. Whether Scott had a torch or saw by the light of one held by someone else is not disclosed. We infer from what he says later on that he had no light and looked no farther than under the one car. He says when his own train stopped he went to plaintiff. He found him about the middle of the third car back of the engine of the extra freight, sitting outside the rail. When asked if he examined the track near where Mr. Williams was, he replied: “Well I didn’t make no special look, or anything like that. I remember looking under the ear.” When asked what the condition of the track was to the extent he did observe it, he replied: “The track didn’t look very good below where he was sitting.” This was objected to and stricken out. Then the record shows this:
“Q. South of where he was ? A. South of where he was sitting? A few holes down there. Q. What do you mean by a few holes down there? A. Holes in the middle of the track. O. Well, what sort of holes? A. Oh, there was supposed to be ballast. Q. You mean the ballast didn’t come up level with the ties, or above it? A. Yes, sir. Q. How was the surface of the track between the rails otherwise along there,*106 except for these holes? A. Well, it was part of it that was ballasted above the ties. Q. You may state whether or not in locations like that, on a track approaching stations, the ballast is usually up level or with the ties? A. I don’t know hardly how I would answer that question. Some places it’s ballast and some places it isn’t. . . . Q. What were the conditions that night, as to light or darkness? A. It was awful dark; couldn’t see very far ahead of you. Q. About how far ahead could you see without a light? A. Four or five feet.”
There was evidence that at the place in question the surface of defendant’s roadbed between the rails was of gravel, chat, cinders and dirt. The center (as was usual) was higher than either side, for drainage purposes. In the center it was not always exactly even. Sometimes the surfacing would be a half inch or an inch- higher than the tie and sometimes the same below the tie. It ran in that respect about like the main track, and, as we understand it, about like the track did elsewhere in like locations relative to switches at small way-stations. The track being higher in the center, the ties would naturally become more prominent as one from right or left approaches the rail from the center. While this testimony was introduced on behalf of defendant we see no substantial contradiction of it and no impeachment of the witnesses by cross-examination or otherwise. The record shows, also, without substantial contradiction that at the place plaintiff got off there was nothing to prevent his running for the switch on either side of the track and outside of the end of the ties. . The shoulder and slope of the small dump were not in the way of use by a footman. There were no weeds, loose ties or other obstruction in the way. In fact there is unimpeached testimony that there was a little footway on the west side presumably made and used by brakemen, and some of the testimony shows there was one of like
Recurring to the custom of running for the switch, the sum of it all was that the head brakeman, acting on his own judgment, either left the pilot or went down the steps from the gangway on the side of the engine. The usage, by the run of brakeman, was to do it about as much one way as the other taken as a whole. We give our estimate of it, not unmindful of the fact that a witness or so gave it as the result of his 'observation that the usual way was to step off the pilot. On this occasion plaintiff, who says that under like circumstances when making a run for a switch he always got off the pilot, disclaims (at least at one place in his testimony) .any knowledge of ever having thrown' this identical switch in a run north, and at another place explains why he used the pilot step instead of the gangway, thus:
“Q. Why didn’t-you get down off of the step at the side of the engine instead of off of the pilot? A. Well, I thought I was running just as much chance getting off there as any place. Q. Why? A. Because. I was liable to the suction and might slip down or back under the engine, and if I get off there I have the engine’s speed to overcome. I might run into a tie or a lump of coal or something like that and throw me.”
There was not a particle of testimony that any brakeman in making a run for a switch in the nighttime at this point, or at any other on the road, ever made it 'without a white lantern to see by, whether it was made on the track or to either side. No !such custom %vas shown. There was uneontradicted testimony to the effect that plaintiff, if he chose so to do, could have declined to run for the switch, and could have insisted on the train stopping.
“89. At meeting points between trains of different classes the inferior train must take the siding and clear the superior train at least five minutes, and must pull into the siding when practicable. If necessary to-back in the train must first be protected as prescribed by Rule 99, unless otherwise provided.
“9. When a train stops or is delayed, under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. When recalled he may return to his train, first placing two torpedoes on the rail when the conditions require' it.
“105. Movement of Trains. Both conductors and enginemen are responsible for the safety of their trains and, under conditions not provided for by the rules must take every precaution for their protection.
“303. Trainmasters. They must enforce the tonnage rating for freight trains, and must see that the movements of all trains are made without unnecessary delay.
“500. Reports must be made to the proper officers of any event detrimental to the interest of the company.
“In case of accident to trains, injury to persons, or the existence of anything which may imperil the safety of the service, information must be given at once, to be followed by report giving full particulars.
“Violation of rules or special-instructions must also be reported.
“519. Employees of every grade are warned to see for themselves, before using them, that the machinery or tools which they are expected to use are in proper condition for the service required; and if not, to put them in proper condition, or see that they are so put, before using them; or secure other tools that*109 are in proper condition in their stead. The company does not wish, or expect its employees to incur any risks whatever from which, by exercise of their own judgment and by personal care, they cap protect themselves, but enjoins them to take time in all cases to do their duty in safety, whether they may, at the time, be acting under orders of their superiors or otherwise.
“716. Freight Service. They must see that their trains are filled out to the required tonnage.
“823. Freight brakemen will report to and -receive instructions from the trainsmaster. When on duty they must obey the orders of the conductor.”
“901. Enginemen. They are jointly responsible with the conductor for the safety of the train and the proper observance of the rules; and, although they are under the directions of the conductor with regard to the management of trains, they will not comply with any instructions which imperil the safety of the train or involve a violation of the rules.
“922. They must exercise caution and good judgment in moving and coupling cars and in starting trains to avoid all violent or sudden movements which might cause discomfort or annoyance to passengers, or damage to property.
“When handling trains carrying live stock, they must be careful to avoid shocks that will be likely to-throw the animals off their feet.”
Some complaint is made by respondent of the position taken by appellant at the trial on the admission of testimony. Significance is sought to be attached to that in connection with certain positions taken by appellant’s counsel in their briefs; but we find that respondent’s learned counsel tried their case with abundant caution in that regard and when an objection was made in the particulars in hand, he would withdraw the question. For example, he asked of a witness why they (brakemen) usually take the center of the track?
The petition counts on not only a negligently maintained “track and road bed” but a negligently maintained “right of way near said point so that the same had some holes and depressions therein . . . not reasonably safe,” etc.
There was no attempt to prove a cause of action on the charge relating to the right of way, if'by “right of way” is meant the company’s territory on either side of the track, nor was the case put to the jury on such theory.
The evidence such as it is on the existence of a hole in the track has been mentioned and we now come to the question of notice to defendant. There was no evidence of notice whatever .and none tending to show for what length of time it existed, if it did exist. There was testimony to the general fact that rain washed ballast away and that the passage of trains settled it. This was as far as the evidence went. Other causes
One thing more on the record: Plaintiff’s counsel in one of their briefs urge as an excuse for their client’s lack of care, that (quoting):
“The same disregard of the company for the. interests of their men where the interests of the company in expedition of business were concerned that caused it to so load its trains that this custom of running for the switch became necessary, had brought Williams to a physical and mental condition where he was in no condition to exercise due care for his own safety by good judgment of other than by mere instinct. The defendant had worked him for more than twenty-four hours without rest or sleep,” etc.” (Italics, counsel’s.)
That statement of fact was sharply challenged by defendant’s reply brief and counsel in a later brief with commendable frankness confess error in that particular. The record shows plaintiff had ample rest and was called to duty on the evening of the same night he was injured. Nor, we add, is there any record tending to show negligence in loading the train, nor was such issue (as already pointed out) put to the jury.
In making this statement we have purposely made it uncommonly full. We (barring a reprint of the entire record) have adopted the alternative of giving our own estimate of the fair substance of the evidence on points deemed material to an application of the law to the facts, and plaintiff’s case must stand or fall on that application to those facts.
On such record, a majority of this court direct me to say that in their opinion plaintiff’s judgment cannot stand, because:
Let it be conceded to plaintiff that the dangerous ■custom had grown up of running down the track for a switch in the nighttime from the nose of a going locomotive. Let it be admitted that the custom had existed so long, and was so uniform, that defendant's notice of the custom might be inferred from the flux of time, yet there is not a shred of testimony tending to show that this custom involved running in the darkness without a light to see by. Plaintiff was outside the custom as proved, and we know of no principle of law that would relieve him from responsibility for his contributory negligence in doing that thing. It is self-evident that when one justifies under a custom, his acts must be within the custom. He must not pour new wine in an old bottle.
Cases may be found where a party has negligently put himself in peril and afterwards the master, through :Some act of negligence, has injured him and where recovery has. been alloAved. But such cases are not this ■case and we are cited by plaintiff’s counsel to neither a controlling nor persuasive precedent involving the facts we are dealing Avith here where recovery was allowed.
We know very well that the proposition is abroad in the land that the doctrine of contributory negligence should be exploded. We know, too, that that proposition is being hammered out on the anvil of public discussion and in some other jurisdictions has been crystallized into written law. We take it that if
If, as maintained by some publicists, the defense of contributory negligence be an evil in the law; if the multiplicity of squabbles that arise over the application of the alleged refinements of that doctrine be defects calling for a cure by striking at the root of the matter, not cured one at a time as mosquitoes were once killed (we borrow the similitude), but slapdash in saltatory fashion and by wholesale, as science now teaches, then we must bide the time the lawmaker first speaks in that behalf and so writes it down.
There is another phase of the question of contributory negligence insisted on by defendant’s counsel, to-wit, negligence as a matter of law in choosing the way self-evidently most dangerous of two presented to him in making his run. As the case has already broken, we leave the point to be decided, if ever, in some case turning on it as a pivot. Ultimately and on final analysis it involves the question whether the carrier must make two ways safe for running' in the night time with or without a light, namely, one on the track, the other beside the track. It also involves the question whether, if the carrier (we will say by a rule) requires the servant to run ahead of a going engine
Nor, by the same token, is it necessary for us to decide the question most learnedly and elaborately discussed by counsel, to-wit, the question of defendant’s negligence in track maintenance at the place in question, as a matter of law on the facts in judgment, a negligence stubbornly denied. With that conclusion we put away from us the further questions whether, first, there was substantial evidence of a negligent hole or depression, and, second, more important still, whether there was any substantial evidence tending to show that such hole or depression, if any, had existed such length of time as would bring home notice to defendant. We say substantial evidence, because the “scintilla” doctrine is no longer the rule in this jurisdiction. It is exploded here as it is in England (Ryder v. Wombwell, L. R. 1870, 4 Ex. 31) and as it is as a Federal doctrine (Pleasants v. Fant, 89 U. S. 116).
Unless that sympathy for this unhappy man, which we admit, be allowed to press our judgment beyond the utmost known fringe of the law, as declared in this jurisdiction, it must be held that error was committed in refusing defendant’s demurrer.
With that conclusion reached, there is nothing left to do except to pronounce the judgment we now do, to-wit, the judgment must be reversed. It is so ordered.