19 S.W. 935 (Mo. 1892), Francis v. The Kansas City, St. Joseph & Council Bluffs Railroad Company

Citation:19 S.W. 935, 110 Mo. 387
Opinion Judge:Macfarlane, J.
Party Name:Francis v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant
Attorney:C. A. Mosman for appellant. James W. Boyd and Benjamin Phillip for respondent. Justus W. Brockett, also, for respondent.
Case Date:May 31, 1892
Court:Supreme Court of Missouri
 
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Page 935

19 S.W. 935 (Mo. 1892)

110 Mo. 387

Francis

v.

The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri, Second Division

May 31, 1892

Appeal from Buchanan Circuit Court. -- Hon. Oliver M. Spencer, Judge.

Reversed and remanded.

C. A. Mosman for appellant.

(1) This is not a question of contributory negligence at all. Wherever a violation of the rules of the master for the conduct of his business is a producing cause of injury to the servant, that violation is a complete defense to the master, regardless of whether the violation was in itself negligent. The servant cannot incur a risk, consequent upon a violation of the master's orders, on the master's responsibility. He can only do so at his own risk. Gardner v. Railroad, 58 Mich. 584; Railroad v. Ryan, 7 S.W. 83; Pilkington v. Railroad, 7 S.W. 805; Railroad v. Whitcomb, 111 Ind. 212; Lockwood v. Railroad, 55 Wis. 50; Woolsey v. Railroad, 33 Oh. St. 227; Deeds v. Railroad, 74 Iowa 54; Durgin v. Munson, 9 Allen, 396; Shanny v. Androscoggin Mills, 66 Me. 420; Railroad v. Husson, 101 Pa. St. 1; Chambers v. Railroad, 94 N.C. 475. (2) The court should have sustained the demurrer to the evidence, because of the contributory negligence of the deceased. (3) The record fails to disclose that the injury of Francis was due in any degree to the incompetency of the engineer. Roul v. Railroad, 11 S.E. 558; Kersey's Case, 79 Mo. 362; Corcoran's Case, 16 S.W. 411; Hudson's Case, 101 Mo. 13; Bell v. Railroad, 86 Mo. 599; Dowell v. Railroad, 61 Miss. 691. (4) The court committed error in giving and refusing instructions.

James W. Boyd and Benjamin Phillip for respondent.

(1) The evidence shows that plaintiff's husband, Charles Francis, was run over and killed by a locomotive or engine belonging to defendant, in charge of and being operated by the defendant's servant, Preston; that said Preston was incompetent, unskilful, unfit and not capable of handling or running said engine; that on account of said Preston's incompetency and unskilfulness and inability to handle and run said engine said Francis was run over and killed; and that such incompetency and unfitness were known to the defendant for such a length of time before the accident, that in the exercise of ordinary care and diligence the defendant could have discharged said incompetent and unfit engineer. Under such circumstances the plaintiff being the widow of said Francis can recover in this action. Rolling Stock Co. v. Wilder, 116 Ill. 100; Harper v. Railroad, 47 Mo. 567; Connor v. Railroad, 59 Mo. 285; Gormley v. Iron Works, 61 Mo. 492; Kersey v. Railroad, 79 Mo. 362; Neilson v. Railroad, 85 Mo. 599; Railroad v. Meyers, 65 Tex. 110; Railroad v. Ruby, 38 Ind. 294; Gillman v. Railroad, 13 Allen (Mass.) 433. (2) Notice of the incompetency and unfitness and inability of said Preston to handle and run said engine, and of his negligence and carelessness in handling and operating the same given to Cummings, who had authority and power to control, govern, direct and even remove said Preston from his engine, was notice to the defendant. McDermott v. Railroad, 73 Mo. 516; Verry v. Co., 47 Iowa 549; Huntington v. Decker, 82 Pa. St. 123; Dowling v. Gerard, 74 Mo. 13; Moore v. Railroad, 85 Mo. 588. (3) There is no evidence in this case even tending to show that Francis had any knowledge of the notice mentioned in the evidence and shown in appellant's abstract at page 64. Still, whether he had any such knowledge or not was submitted to the jury on the instructions asked by the appellant, and the jury found that Francis had no knowledge of said notice. (4) Under the evidence the court could not declare as a matter of law, and as is contended by the appellant, that Francis was guilty of such contributory negligence in standing in front of the engine while it was moving towards him, as would bar a recovery by his widow in this case. Where, from the undisputed facts, different inferences can be fairly drawn, the question of negligence should be submitted to the jury. Huber v. Railroad, 92 Mo. 450; Mauerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653; Boland v. City, 32 Mo.App. 8; Corrister v. Railroad, 25 Mo.App. 619; Tabler v. Railroad, 93 Mo. 79; Kidings v. Railroad, 33 Mo.App. 527; Barry v. Railroad, 98 Mo. 62; Kinney v. City, 35 Mo.App. 97. (5) The court did not commit error in giving plaintiff's first instruction. Although the relation of the plaintiff to Charles Francis was not admitted, still the undisputed evidence is that the...

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