15 S.W. 1112 (Mo. 1891), Roddy v. Missouri Pac. Ry. Co.

Citation:15 S.W. 1112, 104 Mo. 234
Opinion Judge:Macfarlane, J.
Party Name:Roddy v. The Missouri Pacific Railway Company, Appellant
Attorney:Adams & Buckner for appellant. Samuel P. Sparks for respondent.
Case Date:April 13, 1891
Court:Supreme Court of Missouri
 
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Page 1112

15 S.W. 1112 (Mo. 1891)

104 Mo. 234

Roddy

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

April 13, 1891

Appeal from Johnson Circuit Court. -- Hon. Chas. W. Sloan, Judge.

Reversed and remanded.

Adams & Buckner for appellant.

(1) The court erred in refusing to give the defendant's instruction at the close of the evidence, that the plaintiff could not recover. Banking Co. v. O'Hara, 46 Ga. 417; Bendict v. Chandler, 26 Ohio St. 393; Maguire v. Magee, 13 A. 551; Heaven v. Pender, 9 Q. B. Div. 303; Winterbottom v. Wright, 10 Mees. & W. 109; Kahl v. Love, 8 Vroom (N. J. L.) 5-37; Collis v. Selden, 3 L. R. C. P. C. 495; Burke v. Refining Co., 18 N.Y. 354 (11 Hun.); King v. Railroad, 66 N.Y. 181; Norton v. Weswell, 26 Barb. 618; Bank v. Ward, 100 U.S. 195; Loose v. Clute, 51 N.Y. 494; Safe Co. v. Ward, 46 N. J. L. 19; Nicker v. Harvey, 49 Mich. 517; Murray v. Railroad, 11 Col. 124; Railroad v. McLaughlin, 47 Ill. 265; Hallihan v. Railroad, 71 Mo. 116; Gordon v. Livingston, 12 Mo.App. 267; Kinealy v. Railroad, 69 Mo. 666; Mann v. Railroad, 86 Mo. 350; Speed v. Railroad, 71 Mo. 308. (2) The injury which plaintiff suffered was not proximate to the wrong attributable to the defendant. A voluntary action intervened between the act charged and the injury. The defendant placed the car on its main track; it was thence moved to Pickle's switch by himself or servants and placed on a grade, and from thence put in motion. Henry v. Railroad, 76 Mo. 288; Searle v. Railroad, 65 Texas, 274; Lewis v. Railroad, 54 Mich. 55; Proctor v. Janings, 6 Nevada, 424; Doggett v. Railroad, 78 N.C. 305; Wood v. Railroad, 49 Mich. 370; Pierson v. Duane, 4 Wall. 605; Frances v. Transfer Co., 5 Mo.App. 7; Kisler v. City, 100 Ind. 210; Car Co. v. Barker, 4 Colo. 344; Scheffer v. Railroad, 105 U.S. 249; Cuff Ad. v. Railroad, 35 N. J. (6 Vroom) 32. (3) The plaintiff's own negligence contributed to the injury of which he complains. (4) The petition fails to state facts sufficient to constitute a cause of action; therefore, the court erred in overruling the defendant's objection to the introduction of any evidence under it and its motion in arrest. (5) The court erred in giving the plaintiff's first instruction, numbered 1. Authorities, supra; Gunly v. Railroad, 93 Mo. 450; Brown v. Ins. Co., 86 Mo. 51; Anderson v. McPike, 86 Mo. 293; State v. Chambers, 87 Mo. 404; Sykes v. Bollman, 85 Mo. 35. (6) The defendant's second and fourth instructions should not have been given. In them the jury are told that the plaintiff had a right to presume that defendant had done its duty and that the appliances to said car were in such state of repair and condition as to be safely managed and controlled. This was error; there was no duty which the defendant owed to plaintiff by contract, and none by law, except not to wilfully injure him. Authorities, supra. (7) The damages are excessive.

Samuel P. Sparks for respondent.

(1) The railway company owed Roddy as the servant of Pickle, its contractee, a legal duty to furnish cars with which to perform his master's work in safety. Iron Co. v. Erickson, 39 Mich. 492; Wood on Master & Serv., pp. 910-921, note; Heaven v. Pender (1883), 49 L. T. R. N. S. 357; Easton v. Railroad, 65 Tex. 577; Carroll v. Railroad, 13 Minn. 30; Horner v. Nicholson, 56 Mo. 220; Wright v. Railroad, 1 Law Rep., Q. B. Div. 252; Holmes v. Railroad, Law Rep. 4 Exch. 254; affirmed, 6 Law Rep. Exch. 123; Shearm. & Red. on Neg. [3 Ed.] sec. 54a, p. 69. A legal privity exists between one contracting party and the servants of the other when they are exposed to risks arising from some duty or obligation by reason of the contractual relation. Iron Co. v. Erickson, 39 Mich. 492; Whittaker's Smith on Neg. [1 Am. Ed.] p. 2; Abraham v. Reynolds, 5 H. & N. 141. (2) First. Negligence in law is a breach of duty unintentionally and proximately producing injury to another possessing equal rights. Whittaker's Smith on Neg., ch. 1, p. 1; Cooley on Torts [Ed. 1880] p. 659, ch. 20; Railroad v. Jones, 95 U.S. 441; Thomp. Neg., preface. Second. Actionable negligence consists in the failure to exercise ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care, by which failure the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. Heaven v. Pender, supra; Bishop, Non. Cont. Law, sec. 436, and note. Third. But privity of contract is not always essential to create a liability in the case; it may arise as well out of the relative situation of the parties. Stewart v. College, 12 Allen (Mass.) 58; Wood, Master & Serv., p. 912; Lancaster v. Ins. Co., 92 Mo. 460; Whittaker's Smith on Neg., p. 2. (3) The injury complained of was not due to any negligence on the part of Roddy or his master in handling the car with the defective brake after it was furnished by the railway company, but was due wholly to its act in furnishing a car with a defective brake. The company could not shift its responsibility for this default onto Pickle, who was in no way responsible. Lancaster v. Ins. Co., 93 Mo. 460; Horner v. Nicholson, 56 Mo. 220. (4) Notwithstanding that Roddy was on the track anp handling the property of appellant he did not become its servant thereby, nor was he merely a volunteer; for he was engaged at the moment of the injury in expediting the work of his own master. Abraham v. Reynolds, 5 H. & N. 141; Eason v. Railroad, supra; Railroad v. Bolton, 21 Am. & Eng. R. R. Cases (Ohio), 501; Holmes v. Railroad, L. R. 4 Exch. 254; 2 Thomp. Neg., sec. 42, p. 1045. (5) The proof was abundant and uncontradicted that the company had been warned of its negligence on former occasions in furnishing cars with brakes out of repair and without any brakes, and that no heed was given to these monitions. Pierce on Railroads, pp. 373-382; Shearm. & Red. Neg., sec. 99; 21 Am. & Eng. R. R. Cases, p. 640. (6) It was not only the duty of the railway company, but it assumed by its contract with Roddy's master, to furnish cars with safe and whole brakes, and the second instruction of plaintiff correctly stated the law in this regard. Hanna v. Railroad, 12 S.W. 719. (7) Appellant's second point that the injury to Roddy was not proximate to the wrong attributed to the defendant because a voluntary action, the moving of the car down to the derrick had intervened, finds no support either in the law or the facts in the record of this case, and is not deserving to be dignified by even a passing consideration. Jucher v. Railroad, 52 Wis. 150; Campbell v. City, 31 Minn. 308; Railroad v. Dorsey, 25 Am. & Eng. R. R. Cases (Tex.) 446. (8) This case is clearly distinguishable from that class of actions brought against the owner of premises by an employe of an independent contractor for erections or improvements on the premises with the owner where from the terms of the contract he owes no duty to the employes of the contractor, of which the cases cited under the first proposition of appellant's brief are types. (9) The question of contributory negligence is usually one of fact to be submitted to a jury. Smith v. Railroad, 61 Mo. 588; Longan v. Railroad, 72 Mo. 392. (10) An employe has a right to assume that the master has done his...

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