Williams v. Kansas City Southern Railway Co.

• Decision Date: 02 April 1914
• Parties: JOHN L. WILLIAMS v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

165 S.W. 788

257 Mo. 87

JOHN L. WILLIAMS v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri

April 2, 1914

Appeal from Jackson Circuit Court. -- Hon. E. E. Porterfield, Judge.

Reversed.

Cyrus Crane and George J. Mersereau for appellant.

(1) On the entire record plaintiff was not entitled to recover (a) Because of his own negligence; (b) Because of his assumption of the risk flowing from the manner in which he attempted to do the work. Gibbons v. Railroad, 66 Iowa 231; Warmington v. Railroad, 46 Mo.App. 159; Loranger v. Railroad, 104 Mich. 80; Carrier v. Railroad, 61 Kan. 407; Francis v. Railroad, 110 Mo. 387; Estes v. Railroad, 37 Kan. 715; Fennell v Railroad, 129 N.Y. 669; Thompson v. Railroad, 26 N. E. (Mass.) 825; Nickerson v. Railroad, 144 Mo.App. 410; Francis v. Railroad, 127 Mo. 658. (2) The evidence does not show that defendant was guilty of any negligence entitling plaintiff to recover. There was no duty devolving upon defendant to maintain a fully ballasted track at the point of the injury. 3 Elliott on Railroads, p. 607; 1 Labatt on Master and Servant, p. 174; 2 Bailey on Master and Servant, p. 998; Fennell v. Railroad, 129 N.Y. 669; Williams v. Railroad, 119 Mo. 316; Stid v. Railroad 236 Mo. 407.

Guthrie Gamble & Street and A. F. Smith for respondent.

(1) The jury are justified in the finding that the defendant knew of and acquiesced in the method of work as pursued by the plaintiff. Crawford v. Stockyards Co., 215 Mo. 394; Barry v. Railroad, 90 Mo. 62; Finnegan v. Railroad, 244 Mo. 608. (2) Defendant was bound to know that the track surface was used in running for switches. See cases under points 1 and 13. (3) The burden of care imposed upon the defendant was not a heavy one. (4) The maintenance of the track as a footway as distinguished from a support for the ties and the rails. Labatt on Master and Servant (1 Ed.), sec. 26, p. 63; 26 Cyc. 1149; Wilson v. Railroad, 122 Mo.App. 667; Railroad v. Merrill, 61 Kan. 671; Railroad v. Johnson, 95 Ill.App. 54; Richards v. Hays, 17 A.D. 422, 45 N.Y.S. 234; Dunn v. Railroad, 107 F. 666; Miller v. Railroad, 17 F. 67; Wood v. Railroad, 144 Va. 650. (5) The defendant owed due care toward the maintenance of the track in question. Schumacher v. Breweries Co., 247 Mo. 141; Franklin v. Railroad, 37 Minn. 409; Railroad v. Sanders, 166 Ill. 270; Ford v. Railroad, 91 Iowa 179; Lewis v. Railroad, 59 Mo. 495; Huhn v. Railroad, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 364; Burdict v. Railroad, 123 Mo. 221; Hollenbeck v. Railroad, 141 Mo. 97; Railroad v. Robbins, 57 Ark. 377; Preston v. Railroad, 84 Ga. 588; Railroad v. Cozby, 174 Ill. 109; Railroad v. Morrissey, 177 Ill. 376; Railroad v. Schwartz, 58 Kan. 235; Hanna v. Railroad, 154 Mass. 529; Railroad v. Pinto, 60 Tex. 516; Railroad v. Reddicker, 67 Tex. 181; Kennedy v. Railroad, 43 Wis. 32; Southerland v. Railroad, 43 F. 646; Davidson v. Railroad, 44 F. 476; Railroad v. Mosely, 56 F. 1009; Railroad v. Teeter, 63 F. 527; Railroad v. Mugg, 132 Ind. 168; Sweat v. Railroad, 156 Mass. 284; Whitcher v. Railroad, 70 N.H. 242; Hennessey v. Railroad, 99 Wis. 109; Railroad v. Bunty, 152 Ind. 591. (6) Plaintiff did not assume the risk of the master's negligence. Dakan v. Mercantile Co., 197 Mo. 238; Obermeyer v. Chair Co., 229 Mo. 97. (7) Plaintiff was not guilty of contributory negligence as a matter of law in being upon the track in front of a slowly moving train. Francis v. Railroad, 127 Mo. 658; O'Mellia v. Railroad, 116 Mo. 205; Burdict v. Railroad, 123 Mo. 221; Hollenbeck v. Railroad, 141 Mo. 97; Preston v. Railroad, 84 Ga. 588; Railroad v. Cosby, 174 Ill. 109; Railroad v. Schwartz, 58 Kan. 235; Hanna v. Railroad, 154 Mass. 529; Railroad v. Pinto, 60 Tex. 516; Railroad v. Mudd, 133 Ind. 168; Hennessey v. Railroad, 99 Wis. 109. (8) Plaintiff was not guilty of contributory negligence as a matter of law in choosing the more dangerous of different ways open to him. Edington v. Railroad, 204 Mo. 67; Brady v. Railroad, 206 Mo. 509; Gordon v. Railroad, 222 Mo. 516; Richardson v. Railroad, 223 Mo. 325; George v. Railroad, 225 Mo. 403. (9) Upon the question of contributory negligence, the long established custom of doing the work in the manner in which it was done, was entitled to strong probative consideration by the jury upon the question of whether it was negligently done. Burdict v. Railroad, 123 Mo. 222; Hollenbeck v. Railroad, 141 Mo. 97; Brady v. Railroad, 206 Mo. 509; O'Mellia v. Railroad, 115 Mo. 205; Gordon v. Railroad, 222 Mo. 516. (10) A servant cannot be charged with contributory negligence in obeying an order, even though dangerous to attempt it, unless the danger was so glaring and obvious that a prudent man would not have chanced it. Pickett v. Railroad, 156 Mo.App. 272; Stevens v. Railroad, 86 Mo. 221; Stevens v. Railroad, 96 Mo. 207; Hurlbut v. Railroad, 130 Mo. 657; Doyle v. Railroad, 140 Mo. 1; Butts v. Construction Co., 199 Mo. 279; Buckner v. Horse & Mule Co., 221 Mo. 700. (11) This court has sustained innumerable cases where the injury was due to the master's negligence, where the danger incurred was much more glaring and obvious to the injured employee than in the case at bar. Hamman v. Coal & Coke Co., 156 Mo. 232; Charlton v. Railroad, 200 Mo. 413; Brady v. Railroad, 206 Mo. 509; Melly v. Railroad, 215 Mo. 567; George v. Railroad, 225 Mo. 364; Corby v. Telephone Co., 231 Mo. 417; Baker v. Railroad, 148 S.W. 611; Yost v. Railroad, 149 S.W. 577. (12) Plaintiff was not guilty of contributory negligence by reason of a violation of rule 519. Railroad v. Hunt, 73 S.E. 588. (13) Even if the terms of rule 519 could be applied to the facts at bar, plaintiff was not guilty of contributory negligence in violating it because the defendant had waived it. It had long since become abrogated and dead. Even a clear and specific rule habitually and customarily violated with the knowledge and acquiescence of the employer is deemed to be waived. Knowledge and acquiescence may be presumd from long continued violation without complaint. Barry v. Railroad, 98 Mo. 62; Rutledge v. Railroad, 123 Mo. 133; Francis v. Railroad, 127 Mo. 658; Yost v. Railroad, 245 Mo. 249; Howard v. Railroad, 110 Mo.App. 514; Duncan v. Railroad, 86 Kan. 112; Railroad v. Hunt, 73 S.W. 588 (Ga.) ; Railroad v. Hamerick, 96 N. E. (Ind.) 647; Wichert v. Railroad, 75 S. E. (N.C.) 812; Jones v. Railroad, 149 S.W. 372.

LAMM, C. J. Graves, Walker and Faris, JJ., concur; Brown and Bond, JJ., dissent. Woodson, J., does not sit.

OPINION

In Banc

LAMM C. J.

-- Plaintiff sued in the Jackson Circuit Court for $ 50,000 damages for personal injuries. Issue was joined on an amended petition. Presently plaintiff recovered judgment for $ 10,000, and defendant appealed.

A word on the pleadings will be helpful, thus: Plaintiff, a freight brakeman, complained in his petition that he was employed on one of defendant's freight trains that was through negligence so heavily loaded, operated on such schedule and run at such speed that it was necessary for him, in the due course of his employment, to alight from the engine of his train while in motion for the purpose of throwing a switch, etc.

(Note: The question whether the train was so negligently loaded, scheduled and run as to cause plaintiff to alight from it while in motion was not submitted to the jury as a ground of liability.)

The petition next charged that defendant "negligently maintained its track, roadbed and right of way at and near such point" (to-wit, a way-station, Drexel) "so that the same had holes and depressions therein and was [sic] not reasonably safe for the use of its employees in passing over the same in the proper and required course of their employment as such;" that as the direct result of such negligent maintenance plaintiff, on getting off the train to turn a switch, fell and was injured. Negligent maintenance was the issue put to the jury as the ground of liability.

The answer was a general denial plus pleas of contributory negligence and assumption of risk.

The reply took issue on the new matter.

We allow ourselves a foreword, thus: There are record signs of a mistrial below. So, this cause, a difficult one, having been thoroughly argued twice by both sides, we believe, in Division and once in Banc, we are warned by respondent's veteran and able counsel as follows, to-wit: "There comes a time where patience ceases to be a virtue." There were signs beyond that admonition, both in briefs and in oral argument by respondent, showing that as "patience had ceased to be a virtue" impatience had taken her place and was relied on as one. Whether impatience is ever a virtue at the bar or on the bench of an appellate court is doubtful. The Chinese have a proverb running: Patience and the mulberry leaf become a silk gown; and there is high authority from no less a lawyer than Paul that: tribulation worketh patience; and patience, experience; and experience, hope; and hope, etc. Observe, all that category of related virtues is handy always and nowhere more so than to bench and bar.

In a strong brief respondent took the hazardous course of not making a plain, concise, colorless statement of fact and issues. The statement submitted carried the color of comment with almost every fact -- comment argumentative in character and having no legitimate place in a statement of facts and issues. A fact stained with comment is an elusive and misleading thing. Accordingly, our brother who first wrote this case in Division was driven away from respondent's statement because of the mischief of its fatal mixture of fact and comment with no marked line of cleavage between the two, and, as appellant's statement was apparently unchallenged, it was naturally accepted as a proper one. In doing so, we...