Landers v. Quincy, Omaha & Kansas City Railroad Company
| Decision Date | 07 December 1908 |
| Parties | BERT LANDERS, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. George W. Wanamaker, Judge.
Reversed and remanded.
J. G Trimble and Hall & Hall for appellant.
(1) The trial court erred in overruling appellant's motions requiring plaintiff to elect and to strike out. Mooney v Kenneth, 19 Mo. 553; Otis v. Bank, 35 Mo. 131; Southworth Co. v. Lamb, 82 Mo. 248; State ex rel. v. Siegenhein, 103 Mo. 569; Christal v Craig, 80 Mo. 367, 370; Kendrick v. Railroad, 81 Mo. 521; Childs v. Railroad, 117 Mo. 437; McHugh v. Transit Co., 190 Mo. 94; Kern v. Pfaff, 44 Mo.App. 32; Kabrich v. Insurance Co., 48 Mo.App. 397; Harris v. Railroad, 51 Mo.App. 128; Commission Co. v. Davis, McDonald & Davis, 115 Mo.App. 67; Seidlmon v. Malasky, 118 Mo.App. 123; Ennis v. Padgett, 122 Mo.App. 544; Spaulding v. Railroad, 129 Mo.App. 607. (2) This cause of action is evidently based on section 2873 of the Revised Statutes of Missouri of 1899, which does not authorize a recovery under the petition. Walker v. Railroad, 121 Mo. 584; McKeon v. Railroad, 42 Mo. 88; Snyder v. Railroad, 60 Mo. 413; Cousins v. Railroad, 66 Mo. 576; Jackson v. Railroad, 87 Mo. 430; Sherman v. Railroad, 72 Mo. 65; Stringer v. Railroad, 96 Mo. 302; Farber v. Railroad, 116 Mo. 94, 32 Mo.App. 378; Haehl v. Railroad, 119 Mo. 339; Jones v. Packet Co., 43 Mo.App. 410; Hartman v. Muehlbach, 64 Mo.App. 565; Meade v. Railroad, 68 Mo.App. 97; Overton v. Railroad, 111 Mo.App. 613; Briscoe v. Railroad, 109 S.W. 95; Garretzen v. Duenckel, 50 Mo. 111; 20 Am. and Eng. Ency. of Law (2 Ed.), 168. The statute is in derogation of the common law and must be strictly construed. Strottman v. Railroad (Mo.), 109 S.W. 777. (3) The petition fails to state a cause of action against defendant for the alleged negligent act of a fellow-servant for it does not state that such act was done while in the performance of a duty of the servant to defendant and the motion in arrest of judgment should have been sustained for this reason. Briscoe v. Railroad (Mo. App.), 109 S.W. 95. (4) The court erred in sustaining plaintiff's objection to the competency of defendant's witnesses Dr. Foster and Dr. Birch, and in excluding their evidence. R. S. 1899, sec. 4659; Linz v. Insurance Co., 8 Mo.App. 363; Bowles v. Kansas City, 51 Mo.App. 421; Weitz v. Railroad, 53 Mo.App. 43; James v. Kansas City, 85 Mo.App. 20; State v. Faulkner, 175 Mo. 546; Hamilton v. Crowe, 175 Mo. 634. (5) The court erred in admitting evidence of the condition of the handcar and repairs made on it before and after the accident. Hipsley v. Railroad, 88 Mo. 354 and cases cited; Ely v. Railroad, 77 Mo. 34; Mahaney v. Railroad, 108 Mo. 200; Alcorn v. Railroad, 108 Mo. 90; Brennan v. St. Louis, 92 Mo. 482; Stalzer v. Packing Co., 84 Mo.App. 574; Colyer v. Railroad, 93 Mo.App. 147. The court erred in admitting the testimony of plaintiff's witness, Cleavenger, as to what the foreman, McCoy, told him about the conversation he had with roadmaster, Phillips, and the testimony of Harrington, as to a conversation between foreman McCoy and roadmaster Phillips, because they were hearsay and not binding upon defendant. The declarations of an agent unless made at the time of doing some act in the scope of his agency and forming a part of the transaction itself, are incompetent. McDermott v. Railroad, 87 Mo. 285; Devlin v. Railroad, 87 Mo. 549; Senn v. Railroad, 108 Mo. 149; Fisher v. Lead Co., 156 Mo. 495; Lee v. Railroad, 112 Mo.App. 372; Wojtylak v. Coal Co., 188 Mo. 285. (6) It was error to permit the witness, McCoy, to state what he thought caused the bar to leave the car for it was merely a guess and a conclusion and not a statement of a fact. This was a direct invasion of the province of the jury and was wholly incompetent. Roscoe v. Railroad, 101 S.W. 32, 37; Taylor v. Railroad, 185 Mo. 255; Gutridge v. Railroad, 94 Mo. 472; Glasgow v. Railroad, 191 Mo. 347; Muff v. Railroad, 22 Mo.App. 584; Walton v. Railroad, 40 Mo.App. 550; Boot & Shoe Co. v. Bain, 46 Mo.App. 581; Benjamin v. Railroad, 50 Mo.App. 609; Madden v. Railroad, 50 Mo.App. 673; Krueger v. Railroad, 84 Mo.App. 358; Koons v. Railroad, 65 Mo. 597; King v. Railroad, 98 Mo. 235; Masterson v. Transit Co., 204 Mo. 522. (7) The court erred in refusing to permit defendant to prove the good reputation of Thos. Ipson for truth for the plaintiff's attorney by his cross examination and the court by its remarks made a direct attack on the witness and it was competent for defendant under such circumstances to sustain the witness. Miller v. Railroad, 5 Mo.App. 481; Walker v. Insurance Co., 62 Mo.App. 220; Berryman v. Cox, 73 Mo.App. 73; Browning v. Railroad, 118 Mo.App. 449. The court also erred in refusing to permit defendant to prove the good reputation of John B. Feurt. (8) The remarks of the court, were highly prejudicial and constitute reversible error. They amounted to a declaration by the court that he considered the witness Ipson unworthy of belief, and were wholly unwarranted and a gross interference by the court with the rights and province of the jury. Wright v. Richmond, 21 Mo.App. 81; McGinnis v. Railroad, 21 Mo.App. 413; State v. Turner, 125 Mo.App. 21; Dreyfus v. Railroad, 124 Mo.App. 594; Rose v. Kansas City, 125 Mo.App. 235; Schmidt v. Railroad, 149 Mo. 269; State ex rel. v. Rubber Mfg. Co., 149 Mo. 192; State v. Breeden, 58 Mo. 507. The jury and not the court must pass upon the credibility of witnesses. State v. Meagher, 49 Mo.App. 589; State v. Stout, 31 Mo. 406; State v. Cushing, 29 Mo. 217; Padgitt v. Moll, 159 Mo. 155; Hipsley v. Railroad, 88 Mo. 353; Gregory v. Chambers, 78 Mo. 298.
A. G. Knight, E. M. Harber and E. R. Sheetz for respondent.
(1) The petition simply states the facts from which arises plaintiff's right of action. To meet possible conditions of the proof plaintiff could plead in his various counts several grounds of negligence; true there is only one right of action and for which there could be only one satisfaction. Landers v. Railroad, 114 Mo.App. 660; White v. Railroad, 202 Mo. 560; Haley v. Railroad, 197 Mo. 15; Rinard v. Railroad, 164 Mo. 270; Heas v. Gansz, 90 Mo.App. 439; Brownell v. Railroad, 47 Mo. 239; Brinkman v. Hunter, 73 Mo. 172; Griffeth v. Railroad, 98 Mo. 168; O'Neil v. Seed & Plant Co., 58 Mo.App. 628; O'Neill v. Blase, 94 Mo.App. 648. Where there is a general allegation of negligence in the petition followed by an enumeration of specific acts, a proof of any one of the specific acts is sufficient. Gayle v. Missouri Car and F. Co., 177 Mo. 427. (2) Regardless of the form of plaintiff's objection to Drs. Foster and Birch as witnesses, they were disqualified under the statute. The presumption is that such information acquired by the physician was necessary in order to prescribe for the patient. State v. Kennedy, 177 Mo. 98; Streeter v. Breckenridge, 23 Mo.App. 244; Kling v. Kansas City, 27 Mo.App. 231; Smart v. Kansas City, 81 Mo.App. 586; Norton v. Moberly, 18 Mo.App. 457. The master is liable whether the lining bar was kicked or shoved from the car by a fellow servant, or rolled from the car on account of its wobbling, unsteady motion. Goransson v. Riter-Conley Man. Co., 186 Mo. 309. (4) The defense of assumption of risk and contributory negligence are affirmative in nature and must be specially pleaded which defendant omitted to do. However, in this case if these questions were to be considered at all, they were for the jury. Mack v. Railroad, 123 Mo.App. 531; Singer v. Railroad, 119 Mo.App. 112; Dingby v. Stockyards Co., 118 Mo.App. 506; Stanley v. Railroad, 112 Mo.App. 601; Rice v. Railroad, 92 Mo.App. 35; Minrhead v. Railroad, 19 Mo.App. 634.
This is a suit for damages for an injury to plaintiff alleged to have been the result of defendant's negligence. While plaintiff and other employees of defendant engaged in repairing its tracks were riding on one of the tracks in a handcar near Coffeysburg in Daviess county, at the rate of speed of from five to eight miles an hour, the handcar became derailed and plaintiff received severe injuries.
This case was once before this court and reversed for the reason that the court submitted to the jury an issue raised on a count in his petition which the plaintiff had dismissed. The case is reported in 114 Mo.App. 655. The plaintiff before the second trial amended his petition by stating his cause of action in four different counts. The defendant moved to require him to elect on which he would proceed to trial, which motion the court overruled. There was no error in this action of the court, as a party has the right to state his cause of action in different consistent counts. [Rinard v. Railroad, 164 Mo. 270; Shuler v. Railroad, 87 Mo.App. 618.]
The amended petition contained three counts substantially as follows: First, that plaintiff was furnished an old dilapidated handcar which was out of repair and unsafe, and that on account of its condition it became derailed, whereby plaintiff was injured. Second, that a certain iron bar carried upon the car was so negligently placed thereon and unsecured, and that by reason of the way it was loaded and carried and by reason of the failure of the foreman to perform his duties to plaintiff to prevent the escape of said bar from the car, it jostled and fell from the car, one end of which caught a tie or rail and the other striking the car, thus derailing it and injuring plaintiff. Third, that some one or more of defendant's employees while engaged in the work of operating the defendant's railroad in propelling said handcar negligently struck, kicked or pushed said bar off of and in front of said car, one end...
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