Jackson v. Missouri Pac. Ry. Co.
| Decision Date | 25 May 1891 |
| Parties | Jackson v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. Jas. B. Gantt, Judge.
Reversed.
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 personal representatives. Gibson v. Railroad, 46 Mo. 169; Lewis v. Railroad, 59 Mo. 499; Whalen v. Church, 62 Mo. 328; Dale v. Railroad, 63 Mo. 458; Long v. Railroad, 65 Mo. 229; Porter v. Railroad, 71 Mo. 72; Hall v. Railroad, 74 Mo. 298; Covey v. Railroad, 86 Mo. 639; Waldhier v. Railroad, 87 Mo. 48; Huhn v. Railroad, 92 Mo. 450; Reagan v. Railroad, 93 Mo. 348; Gutridge v. Railroad, 94 Mo. 474; Bowen v. Railroad, 95 Mo. 278, and cases cited; Stephens v. Railroad, 96 Mo. 212; Barry v. Railroad, 98 Mo. 67; Brown v. Railroad, 15 Am. & Eng. R. R. Cases, 276. (3) We have demonstrated by the authorities cited under proposition 2, that defendant was guilty of actionable negligence, and failed to perform a personal duty which it owed Jackson. It is immaterial whether the person, to whom they had delegated power to represent them in any duty which they owed him, was a fellow servant of Jackson, or not. We insist, however, that the train dispatcher, who was representing defendant and gave the orders, was not a fellow servant of Jackson. Smith v. Railroad, 92 Mo. 359, and cases cited; Dana v. Railroad, 92 N.Y. 639; Darrigan v. Railroad, 23 Am. & Eng. R. R. Cases (Conn.) 438; Lewis v. Seifert, 116 Pa. St. 649, and cases cited; Flike v. Railroad, 53 N.Y. 549; Railroad v. Henderson, 5 Am. & Eng. R. R. Cases, 529; McKinne v. Railroad, 21 Am. & Eng. R. R. Cases, 539; McKune v. Railroad, 17 Am. & Eng. R. R. Cases, 389; Phillips v. Railroad, 23 Am. & Eng. R. R. Cases, 453; Phillips v. Railroad, 64 Wis. 475; Washburn v. Railroad, 3 Head (Tenn.) 638; Sheehan v. Railroad, 91 N.Y. 332. (4) Deceased being ignorant of the dangerous condition of the car, and it being in the dead hour of night, it was the duty of defendant to notify him of its situation and condition, in order that he might refuse to assume the risks of said danger; and its failure to do so was negligence. Porter v. Railroad, 60 Mo. 160; Steahlendorf v. Rosenthal, 30 Wis. 675; Wedgwood v. Railroad, 41 Wis. 478; 44 Wis. 44; Bessex v. Railroad, 45 Wis. 480; Railroad v. Plunkett, 25 Kan. 195; Brown v. Railroad, 15 Am. & Eng. R. R. Cases (Kan.) 275; Porter v. Railroad, 71 Mo. 72. (5) Deceased had a right to assume that defendant had left its sidetracks in a reasonably safe condition to work on, when it sent him in to do the coupling mentioned in evidence, on a dark night, and without warning. Gibson v. Railroad, 46 Mo. 169; Lewis v. Railroad, 59 Mo. 495; Dale v. Railroad, 63 Mo. 459; Long v. Railroad, 65 Mo. 229; Parsons v. Railroad, 94 Mo. 292; Railroad v. Plunkett, 2 Am. & Eng. R. R. Cases, 138; Brown v. Railroad, 15 Am. & Eng. R. R. Cases, 275; Railroad v. Pinto, 15 Am. & Eng. R. R. Cases (Texas) 286; Haugh v. Railroad, 31 Am. & Eng. R. R. Cases, 731, and cases cited; Anderson v. Bennett, 38 Am. & Eng. R. R. Cases (Ore.) 87; Railroad v. Kier, 38 Am. & Eng. R. R. Cases (Kan.) 122. (6) When it appears from the evidence that deceased, although negligent, would have suffered no injury had proper care and caution been observed by defendant, plaintiff is entitled to recover. The evidence in this case shows that Jackson could have ridden upon the brakebeam of the tender in safety, and could have coupled onto the boxcar, had it not been for the iron rails projecting over the end of said flat car. Jackson's conduct was not, therefore, the proximate cause of the injury. Brown v. Railroad, 50 Mo. 465, 468; Bergman v. Railroad, 88 Mo. 678; Dunkman v. Railroad, 95 Mo. 244; Meyers v. Railroad, 59 Mo. 227; Railroad v. McCally, 21 P. 574; Railroad v. Kean, 3 Cent. Rep. (Md.) 716. (7) Even if the deceased was improperly on the brakebeam of the tender, which is by no means conceded, yet he was there for the purpose of expediting the business of his principal, and not for the purpose of coupling cars from that position; his acts, therefore, had no connection with the cause of the injury, to-wit, the car being improperly loaded and left standing on the track where Jackson was required to perform his duty, without any warning of its dangerous condition, and in the dead hour of night. Brown v. Railroad, 50 Mo. 464; Wagner v. Railroad, 97 Mo. 523; Pierce on Railroads, 317. (8) If the evidence shows a state of facts from which different minds might fairly and honestly draw different conclusions as to what was the controlling or direct cause of the matter in controversy, it is a question to be submitted to the jury, although such facts are undisputed. Clemens v. Railroad, 53 Mo. 366; Norton v. Ittner, 56 Mo. 351; Lewis v. Railroad, 59 Mo. 495; Dale v. Railroad, 63 Mo. 460; Stoddard v. Railroad, 65 Mo. 515; Kelley v. Railroad, 70 Mo. 604; Nagel v. Railroad, 75 Mo. 653; Loewer v. City, 77 Mo. 431; Flynn v. Railroad, 78 Mo. 196; Scoville v. Railroad, 81 Mo. 434. (9) Where the evidence is undisputed, and fair-minded men of ordinary intelligence might honestly differ as to whether or not such...
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