16 S.W. 839 (Mo. 1891), Mateer v. Missouri Pac. Ry. Co.

Citation:16 S.W. 839, 105 Mo. 320
Opinion Judge:Gantt, P. J.
Party Name:Mateer v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest for appellant. B. Pike also for appellant. I. C. Terry, Rowell & Ferris and J. H. Zumbalen for respondent.
Case Date:June 15, 1891
Court:Supreme Court of Missouri

Page 839

16 S.W. 839 (Mo. 1891)

105 Mo. 320



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 15, 1891

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

This action was commenced in the circuit court, city of St. Louis, at the October term, 1886, for personal injuries alleged to have been sustained by plaintiff on the twenty-fourth day of November, 1882, while engaged as brakesman in the performance of his duties upon a train of defendant on the Carondelet branch.

The petition is as follows: "Plaintiff states that the defendant, a corporation organized under the laws of Missouri, was on the twenty-fourth day of November, 1882, and had for a long time prior thereto, and has since, been the owner of and operating a railroad in the state of Missouri, and, for the purpose of so operating said railroad, has in use cars, locomotives and all necessary railroad equipments, and also was in the habit of, and did use, haul and interchange with other railroad companies cars belonging to said companies, and did also employ upon its system of railroad cars belonging to various transportation companies and individuals; that at the date of the grievance hereinafter mentioned it had in use and was hauling over its road a class of cars known as the American Refrigerator Transportation Company's cars.

"Plaintiff also states that on the date aforesaid he was, and for a long time prior thereto had been, in the employ of the defendant as a brakeman, and that as such brakeman it became and was his duty to brake and unbrake, couple and uncouple cars, open and close switches for the purpose of switching cars from one track to another, and do such other work as occasion required in handling cars; that in the performance of said duties it was necessary for him to pass along and over the cars of the train to which he was assigned, climb upon the tops of, and to descend from, the same to the ground.

"That, at the date aforesaid, defendant was, through its agents and servants, hauling and placing a train of cars upon the tracks at a point in St. Louis county, state of Missouri, a short distance west of the southern part of the city of St. Louis, known as the west yard of the Missouri Pacific Railway Company, said yard being located about one mile west of what was formerly the city of Carondelet; that there was being hauled and placed in said yard of defendant, and forming part of said train, a car which was marked 'A. R. T. Co.,' signifying that it was one of the cars belonging to said American Refrigerator Transportation Company; that plaintiff was employed by defendant and was engaged in the duty of assisting to place and switch said train on the tracks of defendant at said west yard.

"That for the purpose of enabling brakemen and others, whose occupation may demand it, there is provided at the side of each car, and near the end of the same, what is known as a stirrup, and at the end of each car handholds, forming a ladder, by means of which said brakemen and others can climb to the top of said cars and descend therefrom; that the aforesaid 'A. R. T. Co.' car, which was being hauled and placed as aforesaid by defendant, was so provided with a stirrup and handholds.

"That at the date aforesaid this plaintiff was engaged in assisting to place and switch said train of cars; that he had assisted in the switching of a number of cars at said yard and started to take his place on the top of the cars of said train; that for the purpose of so doing he stepped upon the stirrup of said 'A. R. T. Co.' car and swung himself around to the end of said car to seize one of the handholds of the ladder, placed as aforesaid at the end of said car; that the handhold of said ladder which plaintiff seized was so defectively fastened to said car that it broke and gave way, and plaintiff was thereby thrown to the ground upon one of the rails of the track of the defendant, and, before this plaintiff was able to get away from the position in which he had been thrown, the cars of said train ran upon and over the foot of this plaintiff, bruising and mangling and cutting the same to such an extent as to require its amputation; that by reason thereof plaintiff became sick and lame and sore, and suffered great pain and anguish, and became crippled for life.

"Plaintiff also says that defendant was negligent and careless in employing and using the aforesaid car, having thereon the defectively constructed and imperfect and insufficient ladder and handhold aforesaid; that plaintiff was not negligent or careless, but was exercising all the care and caution possible under the circumstances to avoid the injury referred to, and did not know the defective condition of said car, and that it was owing to the negligence of defendant in using said car so defectively constructed that the aforesaid accident, which resulted in injuries to him, occurred; that defendant knew of the unsafe and defective condition of the ladder or handhold upon said car, or by the exercise of reasonable care should have known that said defect existed at the date of the happening of said accident; but, notwithstanding, in violation of its obligations to plaintiff, did use the aforesaid car with the consequence described.

"By reason of the premises, therefore, plaintiff asks judgment in the sum of $ 10,000 and costs."

To which the defendant railway company filed an answer, containing a general denial, a plea of contributory negligence, and a further plea of a release by plaintiff of all damages growing out of his alleged injuries, in consideration of the sum of $ 300 paid to him by defendant, which said answer is as follows: "Now comes defendant, and for answer to the petition in the above-entitled cause denies each and every allegation thereof.

"Second. And, for a second defense, defendant alleges that whatever injuries, if any, that plaintiff received on the twenty-fourth day of November, 1882, from the accident mentioned in said petition, were the result of his own negligence and want of ordinary care directly contributing to cause the same.

"Third. And, for a third defense, defendant alleges that after the happening of the alleged injuries and grievances to plaintiff in said petition alleged to have been the result of the negligence of defendant, and before the institution of the suit, to-wit, on the day of , defendant made a settlement of the injuries complained of in said petition with plaintiff, and said plaintiff executed and delivered to the defendant his writing of release therefor, embracing the identical injuries mentioned in said petition and sued for by said plaintiff herein, which said release is herewith filed. Defendant further says that said plaintiff received the sum of money above mentioned, in full payment of all injuries claimed to have been received by him at the time and under the circumstances stated in the petition, and made the above release therefor."

To the portion of said answer, setting up affirmative matter, plaintiff filed a reply, which is as follows: "Plaintiff comes, and for amended reply, filed by leave of court, to defendant's answer, denies that whatever injuries plaintiff received on the twenty-fourth day of November, 1882, from the accident mentioned in his petition, were the result of his negligence, and want of ordinary care directly contributed to cause the same.

"And, replying to the third defense set up by the defendant, plaintiff admits that he signed the instrument filed by defendant, purporting to be a receipt for $ 300, for, and on account of, injuries received by him in the manner described in plaintiff's petition; but plaintiff says his signature to said receipt was obtained through false and fraudulent representations and statements made to him by defendant's agents, as to the character of said receipt; that this plaintiff did not read said receipt, nor hear it read to him by any person; that he was induced to sign said receipt by said false representations and statements made by defendant's agents as aforesaid, and by artifice, deception and fraud practiced upon him by defendant's agents, he (this plaintiff) at the time relying upon said false representations and statements made by defendant's agents and not being aware of the artifice, deception and fraud being practiced as aforesaid, in the manner aforesaid.

"Plaintiff also says, that defendant's agents knew said representations and statements were false and fraudulent when they made the same, and also knew that they were practicing artifice, deception and fraud upon this plaintiff; that this plaintiff did not know said representations and statements were false, and did not know of the artifice, deception and fraud being practiced upon him at the time he signed the said receipt; that said receipt, although it purports to be given for injuries received by this plaintiff, as therein stated, was not intended or designed to be, and never understood by plaintiff to be, a release of his claim against defendant for damages arising on account of his injuries received, as stated in his petition, but was designed and intended and understood by this defendant to be in payment of his claim for services against this defendant during the time plaintiff was incapable of doing work on account of said injury. And, therefore, plaintiff asks the court to declare said instrument null, and for judgment as heretofore prayed."

This case was afterwards, on application of plaintiff, taken by change of venue to the circuit court of St. Louis county, in which it was tried at the November term thereof, 1887. Plaintiff, to sustain the issues on his part, introduced Thomas Shea as a witness in his behalf. Defendant, thereupon, objected to the introduction of any testimony in the...

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