109 Mo. 475 | Mo. | 1891
Plaintiff brought this suit to recover damages for injuries received while in the employ of defendant as head brakeman on a freight train on the defendant’s branch road from Pleasant Hill to Nevada. The cause of action, speaking in general terms, is that plaintiff was injured by reason of the negligence of the engineer, who, it is alleged, was an incompetent and
The train gang was composed of Reed, conductor; Otis Clark, engineer; Joy, fireman; plaintiff, head brakeman, and two other brakemen. The train left Pleasant Hill in the forenoon of the third of December, 1886, and reached a station called Archie in the afternoon. There the train was sidetracked, and the conductor, engineer and fireman went with the engine to another station for water, and returned late in the afternoon. The plaintiff then coupled the engine to the train and got in the cab. From this station there was an up grade for two hundred ygrds, and then a down grade for at least one mile. In going over the hill the train broke in two, and some t»f the detached cars were derailed. The engine and eight cars attached to it went on for a mile or so and stopped. Plaintiff then left the cab and went to the ear next to the rear one. As to what then transpired he says: “I gave Clark, the engineer, a slow signal to back up. He commenced backing, and, after going two hundred yards, I signaled him to stop. I could then see the derailed portion of the train. We were at least a half-mile from it. I stood over on his side of the train and kept giving him the signal to stop. He came faster and faster and ran into the wrecked cars, and that was the last I knew for a long time. I could see the cab of the engine, and there was nothing to prevent him from seeing the signals if he had looked. It was his duty to obey the signals, but he paid no attention to them. The speed was continually increasing until the collision.” This witness testified, on a former trial, that he was standing on the middle of the car next to the rear one when he gave the signals.
The fireman says there was a wind and snow storm at the time of the accident, so that one could, not see
There is a vast amount of evidence bearing upon Clark’s intemperate habits. This evidence discloses these facts: Prior to 1880 he ran a passenger locomotive on another road. From that date to his death in 1887 he-ran a freight engine on the defendant’s branch road, and during that time had his headquarters at Pleasant Hill. The evidence of the proprietor and porter of the hotel where he boarded, and two or three saloon keepers at that place, is to the effect that Clark was a habitual drinker from 1880 to his death; that he often staid in a saloon for a whole day at a time; that he bought liquor by the bottle as well as the drink, and took the bottles to his room; that he was often intoxicated and seldom free from the influence of whiskey. One of these witnesses says he saw Clark drunk on the engine on one occasion, so drunk that he had to be assisted to his room when he reached Pleasant Hill. This was before the accident. The hotel keeper says Clark acted like a crazy man at all times, and kept going down to the day of his death.
A Mr. Clay, who worked at a blacksmith shop near the roundhouse where Clark came with his engine, says he often saw Clark get on and off his engine intoxicated. Mr. Preston, who was the defendant’s storekeeper, says he had seen Clark under the influence of whiskey several times, but could not say whether it was before or after the accident. Plaintiff had been in the employ of the defendant for about two months. He had made only one trip with Clark before the trip in question. He was in the cab with Clark on the day of the accident and at the time the train broke in two.
From the evidence produced hy the defendant it appears Clark and the conductor, just after the accident, took the plaintiff to a station some six or seven miles distant and left him with a physician. This physician says he did not see anything to indicate that Clark was intoxicated. Joy, the fireman, says he had fired for Clark for seven or eight months; that he never saw Clark drunk while on duty, and that Clark was sober at the time of the accident. This witness admits that he stated on a former occasion that he had seen Clark under the influence of liquor. Mr. Charlton, the foreman of the roundhouse at Pleasant Hill, says he saw. Clark every day and never saw him. come in under the influence of whiskey. In the summer of 1886 he heard some talk and complaint that Clark was drinking too much, that he did not know Clark was ever intoxicated while on an engine. Mr. Lester, the traveling engine inspector, says he saw Clark once or twice a month and never saw him under the influence of liquor. The defendant examined a number of other engineers who say Clark was a good and competent engineer, and that they did not know of his drinking.
A rule of defendant was put in evidence which is in these words: “The use of intoxicating liquors of any description, by any employe of this company, is positively forbidden. Employes frequenting saloons will be discharged from the service of the company.”
1. There is no dispute as to this proposition of law, namely, that the master must use ordinary care in employing and retaining competent and suitable servants. This is a personal duty devolved upon the master; and he is liable for' a failure to perform this duty, resulting in an-injury to a fellow-servant.
According to the plaintiff’s witnesses, Clark was a habitual drinker, often drunk when off and sometimes when on duty, and was seldom free from the influence of liquor. From these facts the jury had a right to draw the inference that Clark was an unfit person to be intrusted with the responsible duties of a locomotive engineer, even in his sober intervals. The evidence shows that it requires a man of steady nerve, cautious, and not forgetful, to discharge such duties. That these elements of physical and mental strength will and do yield and give way from continued intemperate habits is but common information. Besides this, all of the defendant’s witnesses, who testify upon the subject, say that a man having the habits which the plaintiff’s witnesses say Clark had should not be put in charge of a locomotive engine. It requires no temperance lecture to satisfy the mind of anyone that there is an abundance of evidence to uphold and support the verdict on this issue.
2. But it is said there is no evidence to show that the defendant knew or ought to have known of Clark’s habits. Mr. Clay says he worked from 1883 to 1886 at a shop near the roundhouse; that during that time he,
3. It is again said there is no evidence to show that Clark’s intemperate habits had any agency in producing the collision. While there is evidence tending to show that he did not see, or may have misunderstood, the signals to stop given by the plaintiff, there- is also evidence tending to show that the collision was
4. The instructions given on both sides told the jury that, before the plaintiff could recover he must show that he had no knowledge of such intemperate habits on the part of Clark, and could not, by the exercise of ordinary care, have known of such habits and incompetency. The objection made that there is no evidence to support the finding on the issue submitted by these instructions is not well taken. In the first place the plaintiff’s evidence is quite clear to the effect that he knew nothing about Clark’s habits. He went into the employ of the defendant about the middle of October, 1886, and this accident occurred, as has been stated, on the third of December of the same year. He had made but one trip with Clark before the one in question. He says: “I was only slightly acquainted with him. I had known him only a few days. I boarded at the same hotel with him but did not see him very often. Sometimes I was in when he was, and sometimes I was not.” This evidence is ample to justify the finding of the jury, even with the burden of proof erroneously cast upon the plaintiff. We say
5. The defendant asked, but the court refused, to instruct the jury “that if the plaintiff had equal means of knowledge with the defendant, in ascertaining the alleged in competency of the said Otis Clark, then the plaintiff is not entitled to recover.” In the first place there was no evidence to warrant the giving of such an instruction. As has been said, the plaintiff had been in the defendant’s employ but a short time, had made but one trip with Clark, and was but slightly acquainted with him. On the other hand, Clark had been in the employ of the defendant for five or six years, and during that time was under the eye of the defendant’s foreman of the roundhouse. To say, under these circumstances, that the plaintiff and defendant had equal means of knowledge concerning Clark’s habits is absurd. Besides this the instruction is not a correct statement of the law in the abstract.
The other minor objections are overruled, and, the judgment is affirmed.