Alcorn v. Chicago & A. R. Co.

• Decision Date: 22 December 1891
• Citation: 108 Mo. 81,18 S.W. 188
• Court: Missouri Supreme Court
• Parties: ALCORN v. CHICAGO & A. R. CO.

18 S.W. 188

108 Mo. 81

ALCORN v. CHICAGO & A. R. CO.

Supreme Court of Missouri.

December 22, 1891.

MASTER AND SERVANT — NEGLIGENCE OF MASTER — PRECAUTIONS AFTER ACCIDENT — RULES OF RAILWAY COMPANY — EVIDENCE — ERROR NOT PREJUDICIAL — NEGLIGENCE.

1. In an action against a railway company for personal injuries to a switchman, while uncoupling moving cars, caused by his foot being caught between switch-rails at a place where the block between them was worn away by use, testimony that, within 24 hours after the accident, the defective block was replaced by a new one, is inadmissible to originate an inference or implied admission of negligence, and its admission is ground for reversal of a judgment for plaintiff. BRACE and BLACK, JJ., dissenting, on the ground that the error was not prejudicial.

2. A general objection to such testimony as "incompetent, irrelevant, and immaterial" is sufficient to exclude it where, upon the pleadings and the other evidence in the case, it is wholly inadmissible and misleading.

3. In such action a rule of the defendant company forbidding employes from getting between cars while in motion to uncouple them, is admissible in evidence, although not pleaded by the company, under Rev. St. 1889, § 2055, providing that only substantive facts shall be pleaded, and section 2060, that evidence need not be stated in a pleading.

4. The facts that copies of such rule were extensively distributed among defendant's employes, and posted in conspicuous places in the depots, switch-houses, and elsewhere, and that plaintiff had been for several years in defendant's employ, and had ample opportunities of becoming acquainted with it, are sufficient to raise an inference of his knowledge of it, and to render it admissible in evidence against him. Per SHERWOOD, C. J., and GANTT and MACFARLANE, JJ.

5. But where it appears that such rule had been practically abandoned by defendant, and that the exclusion of evidence of the rule could not have injuriously affected defendant's substantial rights, such exclusion is not ground for reversal of a judgment for plaintiff. Per BARCLAY, THOMAS, BRACE, and BLACK, JJ.

6. A railway switchman, while uncoupling moving cars, at night, was injured by reason of his foot being caught between switch-rails insufficiently blocked. He was familiar with the yard and tracks where the accident happened, and with the methods pursued by the railway company in blocking its tracks, but had no actual knowledge of the defective block. Held, that the question of his negligence, under the circumstances, was for the jury. SHERWOOD, C. J., contra.

In banc. Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by Alcorn against the Chicago & Alton Railroad Company for personal injuries from defendant's negligence. Judgment for plaintiff. Defendant appeals. Reversed. For previous reports, see 14 S. W. Rep. 943, and 16 S. W. Rep. 229.

Lathrop, Smith & Morrow, for appellant. Beebe, Randolph & Watson, for respondent.

SHERWOOD, C. J.

This cause has been thrice argued, and will be found reported in 14 S. W. Rep. 943, and 16 S. W. Rep. 229. When argued the second time, the following statement of the case and opinion were filed:

"STATEMENT.

"This case has been reargued. It is an action for damages laid at the sum of $15,000. The main ground upon which plaintiff relied for recovery was the insufficient blocking of the tracks of the defendant, which was claimed to be the proximate cause of the injury, and that the accident in question occurred while a train of defendant's cars was in motion, and while defendant was in the act of uncoupling one of the cars of such train; his foot being caught between the rails, on the track, by reason of an insufficient block between the rails, and in consequence being knocked down by that train. The answer was a general denial, as well as a plea of contributory negligence, alleging that plaintiff was familiar with the locality in question; knew the condition of the tracks, being employed in the yards for several months prior to the accident, and failed to complain; and the answer further set forth that the defendant got in between the cars while in motion, in violation of the rules and regulations of the defendant company in that behalf made and provided, etc. The rule to which reference was made in the answer is the following: `Rule 55. Great care must be exercised by all persons when coupling cars. Inasmuch as the coupling apparatus of cars and engines cannot be uniform in style, size, or strength, and is liable to be broken, and, from various causes, to render it dangerous to expose the hands, arms, or persons of those engaged in coupling between them, all employes are enjoined, before coupling cars or engines, to examine so as to know the kind and condition of the draw-head, draw-bar, link, and coupling apparatus, and are prohibited from placing in the trains any car with a defective coupling until they have first reported its defective condition to the yard-master or conductor. Sufficient time is allowed and may be taken by employes, in all cases, to make the examination required. Coupling by hand is strictly prohibited in all cases where a stick can be used to guide the link or shackle, and each yard-master, switchman, brakeman, or other employe who may be expected to couple cars is required to provide himself at all times with a stick for that purpose. Every employe is required to exercise the utmost caution to avoid injury to himself or to his fellows, and especially in the switching of cars, and in all movements of trains; in doing which work each employe must look after and be responsible for his own safety. Jumping on or off trains or engines in motion, getting between cars in motion, or to uncouple them, and all similar imprudences, are dangerous, and in violation of duty. All employes are warned that, if they commit them, it will be at their own peril and risk. Every employe is hereby warned that before exposing himself in working or in being on the tracks or grounds of the company, or in working with or being in any manner on or with its cars, engines, machinery or tools, he must examine for his own safety the condition of all machinery, tools, tracks, engines, cars, or whatever he may undertake to work upon or with, before he makes use or exposes himself on or with the same, so as to ascertain, so far as he reasonably can, their condition and soundness; and he is required promptly to report either to the division superintendent, or to the agent who may be his immediate superior in office, any defect in any track, machinery, tools, or property of the company affecting the safety of any one in using or operating upon or with the same. The object of this rule is to protect employes from suffering personal injury from any cause. While the company will be responsible to each one for the discharge of all its duties and obligations to him for any fault or neglect of its own, or of its board of directors or general officers, which are the approximate cause of injury, yet it will not be responsible to him for the consequences of his own fault or neglect, or of that of any other employe of the company, whether they or either of them are superior to him in authority, as conductor, foreman, or otherwise, or not; it being the right and duty of every employe, under all circumstances, to take sufficient time, before exposing himself, to make such examination as is here required, and refuse to obey any order which would expose him to danger. No person who is careless of others or of himself should be continued in the service of this company. Every case of personal injury must be promptly reported in writing to the division superintendent, stating the names and residences of all witnesses, and all the particulars of the occurrence.'

"OPINION OF THE COURT.

"(1) The first point for discussion is whether the testimony of Lamoreaux was admissible, as to having seen the next day a new block between the rails at the point of the accident, which block so filled the space between the rails as to render another like accident impossible. That testimony of subsequently occurring events, like the substitution of a new for the old block, is inadmissible for the purpose of originating an inference or implied admission of negligence because of failure to make the substitution at an earlier period, is supported by abundant authority, as shown by the briefs of defendant's counsel, and this court has announced the same doctrine. Hipsley v. Railroad Co., 88 Mo. 348; Brennan v. St. Louis, 92 Mo. 482, 2 S. W. Rep. 481. A different view from the one here asserted obtains in some jurisdictions, but obviously such a theory of the law places a virtual interdict upon a corporation or individual promptly making needful improvements or repairs when an accident occurs, for fear such repairs or improvements will be construed into a tacit admission of prior negligence in failing to make them before, and thus to have prevented the litigated injury.

"(2) But it is objected that, in any event, the testimony in question was admissible for another purpose, to-wit, to establish the protective character of proper blocking, and therefore that a general objection to such testimony, of its being `incompetent, irrelevant, and immaterial,' was insufficient; that the objection should have been special. There are several answers to this contention. In the first place, there was no such issue raised by the pleadings; in the second place, not a particle of testimony was offered to show who substituted the new for the old block, the necessity for which preliminary testimony is virtually recognized in Brennan v. St. Louis, supra; third, other testimony could readily have been introduced to show the necessity for a proper block, and the evident and only object of the controverted testimony was to convict the defendant company of a confession of negligence because of making...