18 S.W. 1098 (Mo. 1892), Williams v. Missouri Pac. Ry. Co.

Citation:18 S.W. 1098, 109 Mo. 475
Opinion Judge:Black, J.
Party Name:Williams v. The Missouri Pacific Railway Company, Appellant
Attorney:Elijah Robinson for appellant. E. A. Andrews and John W. Beebe for respondent.
Judge Panel:Black, J. Sherwood, P. J., concurs in the result.
Case Date:February 08, 1892
Court:Supreme Court of Missouri
 
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Page 1098

18 S.W. 1098 (Mo. 1892)

109 Mo. 475

Williams

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

February 8, 1892

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

Elijah Robinson for appellant.

(1) The court should have directed the jury to find for the defendant. Huffman v. Railroad, 78 Mo. 50; Wood on Master & Servant, sec. 419, p. 800; Zumwalt v. Railroad, 35 Mo.App. 661. The burden of showing incompetency on the part of Clark, and notice of this fact to defendant, rested on plaintiff. Murphy v. Railroad, 71 Mo. 202; Lee v. Works, 62 Mo. 565; Moss v. Railroad, 49 Mo. 167; Shearman & Redfield on Negligence, sec. 99; Railroad v. Sullivan, 63 Ill. 293. There is an entire want of evidence tending to show that the accident was occasioned, either by intoxication on the part of Clark at the time the accident occurred, or by reason of any effect his previous habits of intoxication had produced on him, if such previous habits had in fact existed. Zumwalt v. Railroad, 35 Mo.App. 661; Mathiason v. Mayer, 90 Mo. 585; Harlan v. Railroad, 65 Mo. 25; Henry v. Railroad, 76 Mo. 293. (2) The plaintiff's first instruction should not have been given. First. It assumed that plaintiff was, at the time of the accident, exercising ordinary care, instead of submitting to the jury the question as to whether he was, in fact, exercising ordinary care. Stoher v. Railroad, 91 Mo. 509; Stocker v. Green, 94 Mo. 280; Kramer v. Mason, 96 Mo. 559; Liggett v. Morgan, 98 Mo. 39; Robertson v. Drane, 100 Mo. 273. Second. There was no evidence on which to base such an instruction. Third. It was too general and indefinite. It did not submit to the jury the question of the existence of any particular fact as to incompetency, but left them to form their own opinions as to what would constitute incompetency, without any guide or directions whatever. (3) The plaintiff's second instruction should have been refused, because there was no evidence tending to show that "previous habits of intemperance" had produced any "effect" on Clark, which rendered him incompetent. (4) Instruction, numbered 1, given by the court, while probably correct as an abstract proposition of law, was not based on any evidence in the case. There was not a particle of evidence tending to show that Clark had used intoxicating liquor to such an extent as to render him incapable of exercising ordinary care as a locomotive engineer. (5) Defendant's instruction, numbered 2, should have been given. If defendant had reason to believe, either from personal observation, or from inquiry of persons likely to know, that Clark was fit and competent, then it was not liable. Moss v. Railroad, 49 Mo. 167. (6) Defendant's instruction, numbered 3, should have been given. There is no pretense that defendant had actual knowledge of Clark's incompetency, if he was incompetent, and if plaintiff had equal means of knowledge with defendant he ought not to recover. Cummins v. Collins, 61 Mo. 520; Williams v. Clough, 3 H. & N. 258; Malone v. Hawley, 46 Cal. 409; Porter v. Railroad, 71 Mo. 66; Doyle v. Railroad, 41 Am. & Eng. R. R. Cases, 376. (7) The court should have given defendant's instruction, numbered 4. It contained a full and fair definition of the term "ordinary care." (8) The motion in arrest should have been sustained. The plaintiff's petition failed to show that, while continuing in the service of defendant, a fellow-servant of the engineer, Clark, he did not know of Clark's alleged incompetency. Railroad v. Stupak, 28 Am. & Eng. R. R. Cases, 323. (9) The evidence shows that plaintiff had no cause of action, and the judgment should be reversed without remanding the case. Powell v. Railroad, 76 Mo. 80; Lennox v. Railroad, 76 Mo. 86; Schenck v. Sautter, 73 Mo. 46; Quay v. Lucas, 25 Mo.App. 4; Moore v. Hutchison, 69 Mo. 429.

E. A. Andrews and John W. Beebe for respondent.

(1) There was abundant evidence showing Clark was an unfit and incompetent person to be intrusted with the duties of a locomotive engineer, and that defendant's officers knew of the fact, or, by the exercise of reasonable care, might have known of it. (2) Once having established this incompetency and an act of gross negligence on his part resulting in the defendant's injury, the burden was upon the defendant to show that the negligence and injury were not referable to his incompetency, but to some other cause. Kean v. Copper Mills, 66 Mich. 227; Railroad v. Brooks, 57 Pa. St. 343; Maxwell v. Railroad, 85 Mo. 95. To say that Clark's negligent act could not properly be referred to his unfitness without proof that, at the time of the accident, he was in a state of complete intoxication, is to leave out of the question the gravamen of the charge made in the petition, viz., that, from a long-continued use and abuse of alcoholic...

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