Henry v. Wabash W. Ry. Co.

• Decision Date: 28 March 1892
• Citation: 19 S.W. 239,109 Mo. 488
• Parties: HENRY v. WABASH W. RY. CO.
• Court: Missouri Supreme Court

19 S.W. 239

109 Mo. 488

HENRY v. WABASH W. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

MASTER AND SERVANT — RISKS OF SERVICE — FELLOW — SERVANTS — INSTRUCTIONS — WEIGHT OF EVIDENCE ON APPEAL.

1. In an action against a railroad company for injury received by a locomotive fireman, it appeared that a freight-car, without sufficient brakes to hold it, was left standing on a side track, and during the night, by reason of the wind or of its own weight, it moved down on the main track, where plaintiff's locomotive collided with it, causing the injuries complained of. Held, that the accident was not caused by any peril of the service, which plaintiff assumed.

2. In such a case the accident was not the result of the negligence of plaintiff's fellow-servants who left the car on the side track, but was caused by negligence of defendant company in not providing sufficient brakes to hold the car on the side track, where placed. Schaub v. Railroad Co., 16 S. W. Rep. 924, 106 Mo. ___, distinguished.

3. An instruction that the jury "are the exclusive judges of the credit and weight to be given to the testimony of the different witnesses, and, if they find and believe that any witness has willfully testified falsely to any material facts, they are at liberty to reject the whole or any part of such witness' testimony," is proper, where material contradictory testimony has been given.

4. Where the evidence is conflicting a verdict will not be disturbed on appeal.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by Thomas S. Henry against the Wabash Western Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

F. W. Lehmann and Geo. S. Grover, for appellant. John A. Talty, for respondent.

MACFARLANE, J.

This is an action for damages for personal injuries received by plaintiff while engaged in the discharge of his duties as a locomotive fireman on one of defendant's engines on the line of its road, near Hull's Point, Mo., by reason of a collision of the engine with a freight-car standing upon the track. The petition charged that the engine on which plaintiff was firing ran into a freight-car, by reason of which the engine was thrown from the track, and plaintiff injured. The negligence charged was that the brakes on said freight-car were defective and insufficient to hold the car in its place, and such defective condition was known to defendant, or by reasonable care might have been known by it; that said car, in such defective condition, was placed on the side track at Hull's Point, and left thereon, without being properly secured, and on the night of December 31, 1887, said car, by reason of not being secured, was moved by its own weight, or by the wind and rain, onto the main track of the road, where it was struck by the engine, as stated. The answer was a general denial. The evidence disclosed, in substance, the following facts: About the 27th day of December, 1887, a stock freight-car, loaded with scrap-iron, was put upon the side track at Hull's Point for unloading. The car was afterwards unloaded by some of defendant's trackmen. Before unloading, it was moved by the trackmen east from the place at which it was left by the trainmen who had placed it on the side track. The brakeman who rode the car onto the side track, and left it there, testified that the brake was defective and would not hold. The other brakeman of the train, and the sectionmen who moved and unloaded the car, testified that the brakes were in good repair and condition. A car-inspector of defendant also testified that he inspected this car on the 16th or 17th of December, 1887, and at that time the brakes were in good condition. Defendant offered evidence tending to prove that the car had been moved from where it was left on the side track by the trackmen to the main track, by persons, for the purpose of wrecking the passenger train and robbing the cars and passengers. In support of this theory, it read the depositions of two convicts of the Missouri penitentiary, — John H. Sweeney and Noah W. Drew. The former testified that Drew, together with one Harrison and one Hargrave, pushed the car out on the track, where it collided with defendant's train. Drew testified that, on the night in question, he saw Sweeney, Harrison, and another man, unknown to him, at Hull's Point; saw Sweeney let off the brakes, and saw the three men push the car to the spot at which the wreck afterwards occurred. The verdict and judgment were for plaintiff, and defendant appealed.

1. It is insisted, in the first place, that the preponderance of the evidence in favor of defendant is so great as to imply partiality, prejudice, or misconduct on the part of the jury. It must be conceded that the evidence, as preserved in the bill of exceptions, seems greatly to preponderate in the favor of defendant. Yet it must be remembered that the appearances and conduct of witnesses while testifying may be such as to materially affect their credibility, or even wholly destroy its probative force. These tests of the credit to be accorded the witnesses can only be applied by the court and jury who see and hear them. Hence it has been the established rule of this court that, "where there is a conflict in the evidence, it will not be weighed here in order to ascertain whether the jury properly weighed it or not, on the trial." The trial court is the proper tribunal to correct any appearance of partiality, prejudice, or...