102 S.W. 978 (Mo. 1907), Brady v. Kansas City, St. Louis & Chicago Railroad Company

Citation:102 S.W. 978, 206 Mo. 509
Opinion Judge:BURGESS, J. Per Curiam.
Attorney:Scarritt, Scarritt & Jones for appellant. Walsh & Morrison for respondent.
Case Date:November 06, 1907
Court:Supreme Court of Missouri

Page 978

102 S.W. 978 (Mo. 1907)

206 Mo. 509




Supreme Court of Missouri, Second Division

November 6, 1907

Page 979

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed on condition.

Scarritt, Scarritt & Jones for appellant.

(1) Plaintiff's instruction number one is fatally defective. (a) It is fatally defective because it instructed a verdict against the defendant, who is not charged with negligence, but whose liability is sought to be established solely through the allegation and proof that it is the owner of a certain railroad right of way, which it had leased to another railroad company, whose negligence is alleged to have caused the injury, without requiring the jury to find that the defendant ever owned the lands or tracks or right of way where the injury occurred, or that it had leased the same to the Chicago & Alton Railway Company. The answer is a general denial. There is no admission in the record that defendant ever owned the land or tracks where the injury occurred, and yet this essential element to the recovery is wholly eliminated from this mandatory instruction for plaintiff. Such an omission constitutes reversible error. Jackson v. Bowles, 67 Mo. 609; Crews v. Lockland, 67 Mo. 619; Greer v. Parker, 85 Mo. 111; Birtwhistle v. Woodward, 95 Mo. 113; Morris v. Railroad, 99 Mo.App. 455. (b) It is defective in grounding plaintiff's right to recover upon the fact that Fredericks drew the pin when he "at the time knew, or by the exercise of ordinary care and caution would have known that plaintiff was (merely) in a position of peril between said cars in the act of endeavoring to uncouple the same." It omits the essential element that Fredericks knew, or by the exercise of reasonable care would have known that the drawing of the lever and the separation of the cars would cause Brady's fall, or that it would cause any injury to Brady, or that it would in any way increase his peril. Everybody knows that it is dangerous to attempt to stand between cars on a brakebeam while they are in motion. This instruction does not concede to Fredericks that essential requisite of negligent conduct under the circumstances now being considered, namely, that he knew, or as a reasonably careful person should have known, that his act in raising the coupling pin would increase the danger of the position that Brady occupied in being between the cars in the act of attempting to uncouple them. Wojtylak v. Coal Co., 188 Mo. 281. (c) It is fatally defective in declaring that if the "witness Fredericks carelessly and negligently drew the coupling pin connecting the said cars, allowing the cars to part, thus causing Mr. Brady, the plaintiff, to fall," etc., a verdict in the absence of contributory negligence or assumption of the risk must be for the plaintiff. Who is the witness Fredericks? Is he the defendant? Why should defendant be held liable because forsooth one Fredericks may have been negligent? There is no showing in this record that will warrant the court in asserting it to be a conceded fact that Fredericks at the time of the injury was in the employ of the Chicago & Alton Railway Company. The trial court in assuming such a material fact -- an absolutely essential fact to recovery in this action -- at the request of the plaintiff has been led into reversible error. An instruction which assumes the truth of controverted facts is uniformly held erroneous in this jurisdiction. Brown v. Railroad, 80 Mo. 457; Comer v. Taylor, 82 Mo. 347; Fullerton v. Fordyce, 121 Mo. 13. (d) This instruction is erroneous in submitting to the jury to find as a condition of the alleged negligence "that plaintiff was required in the course of his employment to go between the cars mentioned in evidence in the yards of the defendant for the purpose of uncoupling the same," etc. There is no evidence upon which to submit this charge that plaintiff was "required in the course of his employment to go between the cars." (2) Plaintiff's instruction 2 asserts that "he (the plaintiff) did not assume the risks, if there were any such, arising from the negligence of said company (the Chicago & Alton Railway Company), or the said witness Fredericks." This instruction is erroneous in that it assumes there is such a relation between Fredericks and the defendant, Kansas City, St. Louis & Chicago Railroad Company, that the defendant is liable for Fredericks' acts. Again we ask, who is Fredericks? What right has the court to assume, without further ado, that Fredericks and defendant, so far as the defendant's legal liability is concerned, are one? Is it anywhere admitted that Fredericks is in the employ of the defendant? Or that he is in the employ of the Chicago & Alton Railroad Company, or the Chicago & Alton Railway Company? Upon plaintiff's theory of this case it devolved upon the plaintiff to prove and to establish by the evidence and to the satisfaction of the jury (1) that Fredericks was the agent for the Chicago & Alton Railway Company; (2) that the Chicago & Alton Railway Company was the lessee of defendant, and (3) that the defendant owned the right of way at the place where the injury occurred. (3) Upon the undisputed facts there was no causal negligence on the part of Fredericks. Railroad v. Schumacher, 152 U.S. 77; Young v. Railroad, 42 W.Va. 112; Gilbert v. Railroad, 128 F. 528; Mathis v. Stock Yards Co., 185 Mo. 434; Jackson v. Railroad, 104 Mo. 457; Williams v. Railroad, 119 Mo. 322; Francis v. Railroad, 127 Mo. 658; Railroad v. Smith, 82 Ga. 236. (4) Upon the undisputable facts plaintiff's negligence was a contributing cause to his injury. (a) This act of his, of going between the moving cars for the purpose of uncoupling, when there was a perfectly working lever on the other side which could have been worked by himself and was safely worked by another employee, shows a heedless and reckless disregard of his own safety. Moore v. Railroad, 146 Mo. 582; Morris v. Railroad, 108 F. 747. Nor is plaintiff to be excused on the ground that he did not want to take the time to go around or over the car, or to call to coemployees to aid in the task. Smith v. Box Co., 193 Mo. 715; Gilbert v. Railroad, 128 F. 528. (b) If it be true, and plaintiff says it is, that he was standing firmly upon the brake-beam and was holding to a handhold (no assertion being made that these appliances were defective or unusual), and was in the act of drawing the coupling pin so that the cars would be separated while his back leaned against the opposite car, and the separation of the cars caused him to fall, he was negligent in relying upon that car to support him although the separation may have been caused by the act of another member of the crew with whom he was working. He was negligent in relying upon that car to support him from falling under those circumstances. Young v. Railroad, 42 W.Va. 112; Railroad v. Fox, 20 Ky. 81; Railroad v. Schumacher, 152 U.S. 77. (5) Section 1060, Revised Statutes 1899, is unconstitutional and void in that it denies to defendant the equal protection of the law, and deprives defendant of its property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States. And it violates sections four, ten, fifteen and thirty of article two of the Constitution of Missouri. It is clear from the reading of this statute imposing a liability upon the lessor domestic company for the negligent act of its lessee or contractee that it applies only when such lessee or contractee is a foreign corporation and not a domestic corporation; in other words, that a domestic corporation is exempt from its terms. And there are no words in this law which impose a like obligation upon domestic corporations as lessees. It is equally clear too that it applies only to the immediate lessee or contractee.

Walsh & Morrison for respondent.

(1) Plaintiff's first instruction is not defective. (a) The answer admits the ownership of the road and that the switching crew and men in charge of the yards were in the employ of the Chicago & Alton Railway Company. Defendant's instructions concede the leasing of the right of way. Markey v. Railroad, 185 Mo. 363; Parks v. Railroad, 178 Mo. 120; Bertram v. Railroad, 154 Mo. 654; State ex rel. v. Branch, 151 Mo. 636; Bank v. Hatch, 98 Mo. 378; Farber v. Railroad, 139 Mo. 272; Anderson v. Bradford, 102 Mo.App. 433; Sweeney v. Railroad, 150 Mo. 402; Henderson v. Kansas City, 177 Mo. 490; Barr v. Armstrong, 56 Mo. 589. (b) The requirement in said instruction to find that Fredericks "knew, or by the exercise of ordinary care and caution would have known, that plaintiff was in a position of peril between said cars in the act of endeavoring to uncouple the same," is sufficiently explicit as referring the jury to the peril from Fredericks' act. Instructions are to be construed in reference to the evidence before the jury, and need not be framed so as to exclude contingencies and exceptions not in evidence. Montgomery v. Railroad, 181 Mo. 489; Russell v. Ins. Co., 55 Mo. 594; Moore v. Railroad, 73 Mo. 440; Miller v. Railroad (Mo. App.), 102 S.W. 592; Berry v. Hardmon, 12 Ala. 607; Hale v. Darter, 29 Tenn. (10 Hump.) 95; Waters v. Spencer, 22 Ala. 468; Adams v. State, 22 Ga. 425; Roots v. Tyner, 10 Ind. 90; Bank v. Keene, 53 Me. 103; Lyman v. Redmon, 23 Me. 289; Gerrish v. New Markey Co., 30 N. H. (10 Fost.) 484; Davis v. Loftin, 6 Tex. 489; Railroad v. Thomas, 92 Va. 612. The instruction being good as far as it goes and not misleading, if defendant thought it too general it was its duty to ask a more explicit instruction, failing which it cannot complain. Montgomery v. Railroad, 181 Mo. 489; Brown v. Railroad, 13 Mo.App. 466; State ex rel. v. Donnelly, 9 Mo.App. 532; State ex rel. v. Branch, 151 Mo. 636; Hughlett...

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