11 S.W. 308 (Mo. 1889), Barry v. Hannibal & St. Joseph Railroad Co.

Citation:11 S.W. 308, 98 Mo. 62
Opinion Judge:Black, J.
Party Name:Barry v. The Hannibal & St. Joseph Railroad Company, Appellant
Attorney:Strong & Mosman for appellant. S. P. Huston, H. Lander and A. W. Myers for respondent.
Judge Panel:Black, J. Sherwood, J., absent; Barclay, J., concurs in the result.
Case Date:March 23, 1889
Court:Supreme Court of Missouri
 
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Page 308

11 S.W. 308 (Mo. 1889)

98 Mo. 62

Barry

v.

The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri

March 23, 1889

Appeal from Linn Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

Strong & Mosman for appellant.

(1) The demurrer to the case made by the plaintiff's evidence should have been sustained, and the first of defendant's refused instructions should have been given. (a) Because there was not a scintilla of evidence tending to show negligence in the particular specified in the petition. Railroad v. Jones, 95 U.S. 439; Kitteringham v. Railroad, 62 Ia. 285; Dungan v. Champlain Co., 56 N.Y. 1; Odell v. Solomon, 29 N.Y. 685. (b) So far as the trial of the issues in this case are concerned, Barry was, and must be regarded as a trespasser. At least he was upon the track, under such circumstances as created no duty from the defendant to him. Rine v. Railroad, 88 Mo. 298; Henry v. Railroad, 76 Mo. 295; Hallihan v. Railroad, 71 Mo. 119; Kinealy v. Railroad, 69 Mo. 66; Cooley on Torts, 659; Railroad v. Holmes, 5 Colo. 197; Field on Damages, sec. 39; Morrissey v. Railroad, 3 Atlantic, 10. (2) Defendant's servants had the right to assume that Barry would exercise ordinary care, and be engaged in his ordinary duties, and were guilty of no negligence in failing to anticipate his presence on the track. Hallihan v. Railroad, 71 Mo. 117, 118; Langan v. Railroad, 72 Mo. 398; Purl v. Railroad, 72 Mo. 172; Newson v. Railroad, 29 N.Y. 390; Rine v. Railroad, supra. (3) There was no excuse whatever for Barry placing himself between the rails of the main track. It was entirely unnecessary. No duty called him there, and no useful purpose could be subserved by his being there; he thereby absented himself from the position assigned him, abandoning the duties he was employed to perform and turned them over to another, in violation of the orders published by the company, for his guidance, in the conduct of his duties. Under such circumstances, a servant has no right of recovery from his master. He cannot expose himself to dangers not incident to his employment, at the risk of the master. Lockwood v. Railroad, 55 Wis. 50; Martenson v. Railroad, 60 Ia. 705; Railroad v. Sentimeyer, 72 Penn. 276; Railroad v. Ray, 70 Ga. 674; Railroad v. Jones, 95 U.S. 443; O'Neil v. Railroad, 45 Iowa 546; Felch v. Allen, 98 Mass. 574; Beckham v. Hilyar, 47 N. J. L. 12; Wright v. Rawson, 52 Ia. 329. (4) (a) The court erred in giving to the jury plaintiff's first instruction. There was no evidence from which the jury could find the facts hypothecated therein. (b) The running of the hand-car, considering the time, place and circumstances detailed in the testimony, was not negligent. Maskeck v. Railroad, 71 Mo. 276; Boland v. Railroad, 36 Mo. 492; Parsons v. Printing Co., 7 Mo.App. 594. (c) Said instruction, in so far as it predicated a recovery upon the fact that the car was under the management of the section-boss, was a departure from the petition. (d) Said instruction was inconsistent with the defendant's seventh and eighth instructions, in telling the jury to consider the failure of the defendant to have a light upon the car, and to consider the speed of the car in arriving at their verdict.

S. P. Huston, H. Lander and A. W. Myers for respondent.

(1) The rules read in evidence cannot be held as matter of law to make Barry guilty of contributory negligence, from the mere fact that he was off his engine at the time he was killed. (a) Because it was not in evidence that such alleged rules were made known to him. Sprong v. Railroad, 58 N.Y. 56; Wood on Master & Servant [2 Ed.] sec. 401, p. 791; Fay v. Railroad, 11 Am. & Eng. R. R. Cases, 193. (b) Because the testimony shows that such alleged rules were never enforced -- that the general custom was for these insignificant moves about stations to be made in this way. Knowledge of such custom is presumed. Lawson on Usages and Customs, sec. 21, pp. 40, 41, 42; Wood on Master & Servant, sec. 401, p. 791; McGee v. Railroad, 92 Mo. 220; Crane v. Railroad, 87 Mo. 588; Fay v. Railroad, 11 Am. & Eng. R. R. Cases, 193. (c) Because his action in permitting the fireman to make this move did not cause or produce the disaster complained of -- the operating of the engine did not cause Barry's death. Wood on Master and Servant [2 Ed.] 791. (d) Because...

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