18 S.W. 188 (Mo. 1891), Alcorn v. Chicago & A.R. Co.

Citation:18 S.W. 188, 108 Mo. 81
Opinion Judge:Sherwood, C. J.
Party Name:Alcorn v. The Chicago & Alton Railroad Company, Appellant
Attorney:Wash. Adams and Lathrop, Smith & Morrow for appellant. Beebe, Randolph & Watson for respondents.
Judge Panel:Sherwood, C. J. Judges Gantt and Macfarlane concur in all the paragraphs except paragraph 7. Judge Thomas concurs only in those paragraphs relating to the block. Judges Black and Brace dissent, and Barclay, J., expresses his views in a separate opinion. Brace Brace, J.
Case Date:December 22, 1891
Court:Supreme Court of Missouri

Page 188

18 S.W. 188 (Mo. 1891)

108 Mo. 81



The Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri

December 22, 1891

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed and remanded.

Wash. Adams and Lathrop, Smith & Morrow for appellant.

(1) The testimony as to the finding of the new block, the next evening after the accident, between the rails where plaintiff's foot was caught, was clearly incompetent to prove prior negligence on the part of the defendant. The overwhelming weight of authority is against its admissibility, and the decisions of this court are to the same effect. Hipsley v. Co., 88 Mo. 348; Brennan v. St. Louis, 92 Mo. 482. (2) Nor was the evidence competent upon the issue of the protective character of proper blocking. (3) The last question asked Lamoreaux called for the opinion of the witness, which was incompetent. His competency or qualifications as an expert were alone admitted. Brown v. Railroad, 1 How. (Ct. App. Cas. N. Y.) 52, 115; Rogers on Expert Evidence, secs. 8, 9, 10, 15; Lawson on Expert Evidence, rule 24, pp. 94-100; Gavisk v. Railroad, 49 Mo. 274; Koons v. Railroad, 65 Mo. 592; Penn Co. v. Conlan, 101 Ill. 93; Taylor v. Railroad, 39 Am. &. Eng. R. R. Cases, 259. (4) General objections of "irrelevancy and incompetency" are sufficient, where the evidence is incompetent and irrelevant, for any purpose. Hayne on New Trial & Appeal, sec. 105, p. 294; Merritt v. Leaman, 2 Selden, 168; Nightingale v. Scannell, 18 Cal. 315; State v. Flanders, 38 N.H. 324; Pool v. Devers, 30 Ala. 672; Rogers v. Troost, 51 Mo. 470; Peck v. Chouteau, 91 Mo. 138. (5) The objections to the evidence of Lamoreaux were not waived by introducing other evidence in disproof of it, in order to break its force. Costigan v. Trans Co., 33 Mo.App. 269; Martin v. Railroad, 9 N.E. 505; s. c., 103 N.Y. 626. (6) Exclusion of rule 55 as a whole was improper. It all ought to be read together. That part of it relating to getting between cars while in motion to uncouple them, which was expressly pleaded, was undoubtedly both competent and relevant. If objected to on the ground that the whole was offered, and only a part was competent, that objection, if sustained, might have been obviated. Hill v. Sturgeon, 28 Mo. 323; Wilkins v. Railroad, 13 S.W. 893; Thompson on Trials, secs. 696, 843; Waters v. Dashiell, 1 Md. 455; Levy v. Taylor, 24 Md. 282; Driscoll v. Damp, 16 Wis. 106; Miller v. Van Tassel, 24 Cal. 459; Ins. Co. v. Knight, 6 Wharton, 327; Dennis v. Barber, 6 S. & R. 420. (7) It is the duty of the servant to learn the rules which have been adopted by the master for his government and safety either for his own protection or the safety of its employes. Pa. Co. v. Stoelke, 104 Ill. 201; Seese v. Railroad, 39 F. 487; Aldrich v. Monroe, 60 N.H. 118; Railroad v. Langdon, 92 Pa. St. 21; Sedgwick v. Railroad, 73 Iowa 158; Railroad v. Rozenzweig, 26 Am. & Eng. R. R. Cases, 489. (8) The rules and usages of the company need not be pleaded; they are mere evidence bearing on the question of negligence. Henry v. Ryles, 66 Iowa 52. (9) Nor need knowledge of a usage be shown by direct evidence. Knowledge of a rule or usage may be inferred from notoriety of the same. Lawson on Usages & Customs, sec. 21; Parker v. Railroad, 83 Ga. 539. (10) If rule 55 was abandoned or waived, the same should have been pleaded. Pier v. Heinrichoffen, 52 Mo. 333; Bank v. Hatch, 78 Mo. 24; Nichols v. Larkin, 79 Mo. 264; Lanitz v. King, 93 Mo. 513. (11) The plaintiff tendered no issue either by pleadings, evidence or instructions as to the habitual disregard of the rule, to the knowledge of defendant's representative officers. Railroad v. Propst, 83 Ala. 518; Sloan v. Railroad, 12 S.E. 179; Bennett v. Railroad, 49 N.W. 408; Schaub v. Railroad, 16 S.W. 924; Russell v. Railroad, 47 F. 204. (12) The demurrer to the evidence of plaintiff should have been sustained. There was absolutely no evidence of actual notice to defendant of the defective condition of the block between the rails where plaintiff was injured. (13) Where defendant was shown to have blocked the space originally, the burden was upon the plaintiff to show its actual notice of the defective condition of the block, or that such defective condition had existed for so long a time that such notice should be inferred. Laney v. Railroad, 83 Mo. 466; Wood's Master & Servant, sec. 368. (14) In an action by a servant for personal injuries, caused by an alleged defect in the master's machinery, the complaint will be dismissed in the absence of evidence to show how long the defect has existed. Oehme v. Cook, 7 N.Y.S. 764; Wright v. Co., 25 N.Y. 562. (15) Defendant's other refused instructions all correctly declared the law, and should have been given. They were not covered by any instructions given in the case. Keeghan v. Kavanaugh, 62 Mo. 230; Flynn v. Railroad, 78 Mo. 205; Siela v. Railroad, 82 Mo. 430.

Beebe, Randolph & Watson for respondents.

(1) Appellant was bound to provide reasonably safe and suitable blocks for the intended purpose, and to maintain the same in a reasonably safe condition. In this case there was no attempt on the part of the appellant to contradict the testimony offered by respondent showing that the block where he was injured was an old one, and had been permitted to get so worn that it was of no use as a protection against foot-catching. Lewis v. Railroad, 59 Mo. 495; Huhn v. Railroad, 92 Mo. 440. (2) The testimony of Lamoreaux, appellant's switchman, to the effect that he saw a new block between the rails at the point where respondent was injured, the next day; that it filled the space between the rails, and that with such a block it would not be possible for a switchman to catch his foot, was admissible. Likewise the testimony of Kennedy to the effect that he also saw the block in there the next day, and by actual experiment could only catch the sole of his shoe, but not the foot. First. One issue upon which much testimony was given was whether blocking that filled the space between the fixed rails in defendant's yards was an effective device against foot-catching. The testimony of these witnesses tended to show that such blocking was useful and efficient, and that the absence of sufficient blocking was the proximate cause of the injury. Alpern v. Churchill, 53 Mich. 607; Brennan v. St. Louis, 92 Mo. 482. Second. We also contend that such testimony was admissible as amounting to an implied admission on the part of the railroad company, that such blocking was useful, efficient and necessary, and that the place was out of repair. Reedhans v. Conway, 126 Mass. 377; Martin v. Towle, 59 N.H. 32; Railroad v. Renz, 53 Ga. 126; Railroad v. Gleason, 69 Ga. 200; Railroad v. Henderson, 51 Pa. St. 815; Railroad v. McElwee, 67 Pa. St. 311; McKee v. Bidwell, 74 Pa. St. 218; Emporia v. Schmiddling, 33 Kan. 485; Dale v. Railroad, 83 N.Y. 472. Third. The objection to this testimony was general, and the record expressly shows that no objection was made to the competency of Lamoreaux to express an opinion as to whether a switchman's foot could be caught with such a block as he found there the next day. If, therefore, this testimony was admissible under the first head but not admissible under the second head, it follows it should not have been excluded. If the appellant's counsel feared that the jury might infer all the elements of prior negligence from this testimony, he should have made his objection more specific, or asked an instruction limiting the scope and effect of the testimony. Brennan v. St. Louis, supra. (3) The court ruled properly in excluding rule 55 for the following reasons: First. When offered, it was not under any proper construction relevant to any issue in the case, as there was no evidence that the respondent violated said rule. Second. Appellant having pleaded one clause of the rule, only that part was responsive to the answer, and the rule should not have been admitted as an entirety. Jackson v. Hardin, 83 Mo. 175. Third. The court should not have admitted said rule as offered because some of its provisions are unreasonable, contrary to law, and against public policy, and its exclusion as an entirety was not error. Ball v. Railroad, 83 Mo. 574; Rice v. Railroad, 63 Mo. 314; Railroad v. Orr, 8 S. Rep. 17; Muller v. Jackson, 40 N.W. 565; Smith v. Bank, 104 Pa. St. 518. (4) Appellant did not produce sufficient evidence primarily to raise a presumption that notice of the rule had been brought home to respondent. Taking the evidence as a whole, there was a stronger presumption that he had never seen it than that he had. It was a question for the court to decide whether enough evidence had been introduced to raise such a presumption before admitting the rule, if otherwise relevant. The court did not err in holding that no such presumption arose upon the testimony adduced. Wood on Master & Servant [2 Ed.] 187; Shearman & Redfield on Neg. [4 Ed.] 203; Railroad v. Plunkett, 25 Kan. 188; Railroad v. Springstein, 21 P. 774; Railroad v. Ryals, 11 S.E. 499; Railroad v. Lamathe, 13 S.W. 194; Wheeler v. Mfg. Co., 135 Mass. 294; O'Connor v. Adams, 120 Mass. 427. (5) The court did not err in refusing to instruct for the defendant. The great weight of the testimony showed that the respondent was pursuing the proper and customary course, and was exercising proper care.

Sherwood, C. J. Judges Gantt and Macfarlane concur in all the paragraphs except paragraph 7. Judge Thomas concurs only in those paragraphs relating to the block. Judges Black and Brace dissent, and Barclay, J., expresses his views in a separate opinion.


[108 Mo. 87] IN BANC.

Sherwood, C. J.

This cause has been thrice argued, and will be found reported in 14 S.W. 943, and 16 S.W. 229. When argued the second time the following...

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