Nivert v. Wabash Railroad Co.

• Decision Date: 28 February 1911
• Citation: 135 S.W. 33,232 Mo. 626
• Parties: CHRIS NIVERT, Appellant, v. WABASH RAILROAD COMPANY
• Court: Missouri Supreme Court

135 S.W. 33

232 Mo. 626

CHRIS NIVERT, Appellant, v. WABASH RAILROAD COMPANY

Supreme Court of Missouri, First Division

February 28, 1911

Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

Fred Lamb and Gilbert Lamb for appellant.

(1) No objection was made to the pleadings at a reasonable hour defendant filed answer to the petition of plaintiff, the witnesses were present and all the expense made and labor incident to a trial performed before any objection was made to the pleadings. This practice has been repeatedly condemned by this court as well as by the courts of appeals. Goldsmith v. Candy Co., 85 Mo.App. 595; Haseltine v. Smith, 154 Mo. 404; Nainn v Railroad, 126 Mo.App. 707; Smith v. Railroad, 129 Mo.App. 413. Measured by this standard the petition in this case is all the law requires. Granted that it is not a marvel of good pleading and possibly defective in some respects, yet it cannot be said that it would not be good after judgment. (2) The petition contains all the essential averments to an action for general negligence as well as the necessary averments for a recovery under the humanitarian doctrine. The petition in the case at bar is very like the petition in the case of Degonia v. Railroad, 224 Mo 568. In that case this court held that the petition was broad enough to allow a recovery for general negligence, and under the humanitarian doctrine. We believe the same is true of the case on trial. While the ruling of the trial court does not indicate the view of the court on the case, we think opposing counsel will agree that the view of the trial court was, that as the petition shows the tracks of defendant at point of injury were unobstructed and the plaintiff could see the train as far as the trainmen could see him then it became the duty of plaintiff to see the train and remove to a place of safety; that section men are accustomed to work on tracks until the trains are upon them before they move out of harm's way, and trainmen owe them no duty to warn them of the approach of trains. This theory is well enough under ordinary conditions. We concede that the trainmen do not owe section men the duty to warn them when upon the track at a point where it is only a step to a place of safety. We understand this to be the law as declared in Degonia v. Railroad, supra; Cahill v. Railroad, 205 Mo. 411; Evans v. Railroad, 178 Mo. 508; Brockschmidt v. Railroad, 205 Mo. 444; and Clancy v. Railroad, 192 Mo. 615. Yet in each of these cases the point of injury and the conditions were such that the trainmen might reasonably expect that the injured party could and would step to one side and avert a collision. The trial court in the case at bar overlooked the well defined exception to the rule laid down in the above cases, those cases in which the injured party is in a place of imminent peril and without the means or ability to reach a place of safety in a short time. Under such conditions it is the duty of the company to warn one so in peril and avoid his injury. In the case of Degonia v. Railroad, supra, this exception to the general rule is recognized and in the recent case of Williamson v. Railroad. The petition in the case at bar charges that the plaintiff was engaged in tightening a loose joint in the middle of a 72-foot trestle; that the trestle was twelve feet in width and fifteen feet in length; that in this position he was actually seen by the engineer of defendant's train when he was yet half a mile away; that the engineer continued to see plaintiff as he approached said trestle until plaintiff was struck and knocked from the trestle, and that at no time did the engineer warn the plaintiff of the presence of the train. We submit that the petition brings plaintiff's case clearly within the exception to the general rule as applied to track repairers and states every essential fact to a recovery under the humanitarian doctrine.

J. L. Minnis and Robertson & Robertson for respondent.

(1) The judgment entered does not show an involuntary nonsuit. The correct entry is "and now this trial having been begun, the plaintiff takes a nonsuit with leave to move to set aside said nonsuit." On the record made by the appellant his nonsuit was voluntary and therefore will not support an appeal. Williams v. Finks, 156 Mo. 597. (2) The statement of counsel made in open court in the course of the trial is proper matter for consideration by the court in passing upon the merits of plaintiff's case, and if that statement disclosed no cause of action, then the court was justified in sustaining the defendant's objection. Pratt v. Conway, 148 Mo. 291; O'Keefe v. Railroad, 124 Mo.App. 613; Oscanyon v. Arms Company, 103 U.S. 261. (3) Plaintiff's petition failed to state a cause of action. Ring v. Railroad, 112 Mo. 230; Evans v. Railroad, 178 Mo. 517; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Clancy v. Railroad, 192 Mo. 615; Sissel v. Railroad, 214 Mo. 515; Sharp v. Railroad, 161 Mo. 214; Kinlen v. Railroad, 216 Mo. 145; Sims v. Railroad, 116 Mo.App. 572; Ross v. Railroad, 113 Mo.App. 600; Degonia v. Railroad, 224 Mo. 564; Davies v. Railroad, 159 Mo. 1; Moore v. Railroad, 176 Mo. 544; Van Dyke v. Railroad, 230 Mo. 259.

WOODSON, P. J. Lamm, J., concurs in the result in a separate opinion; Graves, J., concurs in all of the opinion except what is said regarding the pleadings; Valliant, J., absent.

OPINION

WOODSON, P. J.

The plaintiff instituted this suit in the circuit court of Chariton county against the defendant to recover the sum of $ 20,000 damages for personal injuries sustained by him in consequence of the alleged negligence of the defendant; and a change of venue was taken to the circuit court of Saline county.

The amended petition filed in the cause (formal parts omitted) was as follows:

"Plaintiff states that the defendant is and was at all the dates set forth in this petition a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, with capacity to sue and be sued, and at all of said dates owned and operated a line of railway running west from the city of Salisbury in Chariton county, Missouri, with its engines and cars thereon.

"Plaintiff further states that on the 21st day of November, 1906, he was, and for a long time prior thereto had been, in the employ of the defendant in the capacity of a section hand that as such employee it became and was the duty of plaintiff to go, under the direction of defendant's foreman, upon the tracks, trestles and bridges along defendant's right of way, inspect the same and to make such repairs thereon as might be necessary to insure the safety and security of the trains of the defendant, the employees and agents in charge and the passengers thereon.

"Plaintiff for cause of action states that on said November 21, 1906, while in the employ of defendant as aforesaid, he was ordered and directed by the foreman having charge of that part of defendant's track extending west from the city of Salisbury (and being that particular foreman under whom plaintiff was assigned to work) to go upon and along the track of defendant extending west from the city of Salisbury and inspect the same and make such repairs as might be necessary to said track and the trestles and bridges thereunder.

"Plaintiff further states that at a point about three miles west of the city of Salisbury, in said county of Chariton, along the line of defendant's line of railway, is a long trestle numbered by defendant No. 465, which trestle spans a ravine and is in length about seventy-five feet and in width about ten feet and in height about fifteen feet. That at a point about six hundred feet east of said trestle is a public highway crossing over defendant's tracks and right of way. That defendant's track from said trestle extending east for more than a mile is level, straight and the track and right of way free from any and all obstructions that would shut out from the view of defendant's employees, operating its said cars as they approached said trestle from the east, said trestle or persons who might be thereupon.

"Plaintiff further states that on said November 21, 1906, in the course of his inspection of said track, he reached the trestle aforesaid; that upon said trestle and in about the center thereof he found loose joints caused by the bolts and clamps connecting the rails of the track becoming loose, a part of the bolts having fallen out and said track at said point, by reason thereof, in a very dangerous and defective condition. That plaintiff, in his efforts to repair and make safe said defect, while upon and in the middle of said trestle in a dangerous and perilous position, in full view of the servants of defendant in charge of its train approaching from the east at that time, and while in the exercise of due care and caution on his part and relying upon the defendant, its agents and servants in charge of its trains to do and perform the duty they owed him of warning him of the approach of said train, was struck and knocked from said trestle to the ground, the distance of fifteen feet, by the engine and freight cars of defendant composing its train No. 91 westbound. That plaintiff for the distance of more than one-half mile to the east of said trestle was in full view of the servants and agents of defendant in charge of said train, with ample time and opportunity on their part to have warned plaintiff of the approach of said train and put the same under control; that plaintiff in said perilous position was seen by the agents and servants of defendant in charge of said train, or by the exercise of ordinary care on their part would have been seen by them for the distance of more than one-half mile to the east of said...