16 S.W. 413 (Mo. 1891), Jackson v. Missouri Pac. Ry. Co.

Citation:16 S.W. 413, 104 Mo. 448
Opinion Judge:Black, J.
Party Name:Jackson v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest for appellant. Adams & Buckner also for appellant. James T. Burney and R. T. Railey for respondent.
Judge Panel:Black, J. Barclay, J., dissents.
Case Date:May 25, 1891
Court:Supreme Court of Missouri

Page 413

16 S.W. 413 (Mo. 1891)

104 Mo. 448



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

May 25, 1891

Appeal from Bates Circuit Court. -- Hon. Jas. B. Gantt, Judge.


H. S. Priest for appellant.

(1) The deceased's contributory negligence should defeat a recovery. This should be so ruled, upon elementary principles, upon an intelligent understanding of the uncontroverted facts. Darracutts v. Railroad, 31 Am. & Eng. R. R. Cases, 157. (2) The projection of iron rails, timbers, etc., over the ends of cars, was risk of the service in which the deceased was engaged. Beach on Cont. Neg., sec. 138; Railroad v. Johnson, 112 Ind. 355; Day v. Railroad, 2 Am. & Eng. R. R. Cases (Mich.) 126; Railroad v. Plunkett, 2 Am. & Eng. R. R. Cases (Kan.) 127; Railroad v. Hussen, 12 Am. & Eng. R. R. Cases (Pa.) 241; Railroad v. Brice, 28 Am. & Eng. R. R. Cases (Ky.) 542; Railroad v. Gowen, 31 Am. & Eng. R. R. Cases (Tenn.) 168; Scott v. Railroad, 28 Am. & Eng. R. R. Cases (Or.) 414; Boyle v. Railroad, 23 N.E. 827; Lathrop v. Railroad, 23 N.E. 227; Meyers v. Iron Co., 150 Mass. 125; Kennedy v. Railroad, 17 A. 7; Nash v. Steel Co., 62 N.H. 406; Railroad v. Somers, 9 S.W. (Tex.) 741; Woods v. Railroad, 40 N.W. 510; Judkins v. Railroad, 14 A. 735; Darracutts v. Railroad, 31 Am. & Eng. R. R. Cases (Va.) 157. (3) The instructions given at the request of the plaintiff are wrong. They affirm a liability without respect to risk of service. They are misleading, in that they refer to abstract principles of law not at all involved in this matter. They affirm a liability with respect to negligence in leaving the car of iron standing upon sidetrack, when the petition concedes that was the proper place for it. They affirm a liability if the "cars" so loaded were unsafe and dangerous in coupling and uncoupling, without reference to the usual risks attending such work.

Adams & Buckner also for appellant.

(1) Where the facts of a case are undisputed, it is a question for the court to determine whether or not the facts proven constitute negligence. Kelly v. Railroad, 11 Mo.App. 1; Yancy v. Railroad, 93 Mo. 433; Bell v. Railroad, 86 Mo. 599; Zimmerman v. Railroad, 71 Mo. 476; Lenix v. Railroad, 76 Mo. 86; Moody v. Railroad, 68 Mo. 470. (2) Where the undisputed evidence shows a clear case of contributory negligence, the duty of the court is to take the case from the jury. Authorities above cited. (3) The act of deceased in assuming the position he did assume in this case under the circumstances was an act of gross negligence. (4) The act of leaving cars improperly loaded on the track was not negligence. (5) The act of loading cars and the act of leaving them loaded upon the track was the act of a fellow servant for which the defendant would not be liable even if it was a negligent act. (6) The deceased was guilty of gross contributory negligence which directly contributed to his death, and the act of which respondent complains was the act of a fellow servant; hence under all the evidence he was not entitled to recover.

James T. Burney and R. T. Railey for respondent.

(1) It is the duty of defendant to use reasonable and ordinary care in securing competent men, under whom Frank Lee Jackson was required to work; to see that the machinery, track and other appliances, with which he was required to work, were reasonably safe; to warn him of unusual or extreme danger, in the line of his duty, if known to itself, and unknown to him -- in order that he might refuse to incur the hazard of said danger. The failure to perform -- through its servants or otherwise -- any of the duties aforesaid, on account of which injury might be sustained, would be actionable negligence on the part of defendant. In consideration of the foregoing, said Jackson agreed to assume all the ordinary risks incident to the business in which he was to engage, including the negligence of fellow servants, except where the latter were performing some duty which defendant owed said Jackson. Tested by these propositions, Jackson was killed by the failure of defendant to perform its plain duty. Paulmier v. Railroad, 34 N. J. L. 152; Anderson v. Bennett, 38 Am. & Eng. R. R. Cases (Oregon) 97, where numerous authorities and precedents are cited and discussed; Wood's Law of Master and Servant [2 Ed.] secs. 354, 355; Baxter v. Roberts, 44 Cal. 188. (2) It was the duty of defendant to exercise reasonable care, in seeing that the cars left upon its switch and sidetracks were not in an unsafe and dangerous condition for brakemen who were required to couple and uncouple cars upon said tracks in the night time, and to give warning of their condition, and whoever was required by defendant to represent it, in the performance of the duties aforesaid, occupied the same relation to said Jackson that defendant itself would have occupied, had it been performing its duties aforesaid through its...

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