2 S.W. 3 (Mo. 1886), Thorpe v. Missouri Pac. Ry. Co.

Citation:2 S.W. 3, 89 Mo. 650
Opinion Judge:Ray, J.
Party Name:Thorpe v. The Missouri Pacific Railway Company, Appellant
Attorney:T. J. Portis and Bennett Pike for appellant. Woodson & Slaughter for respondent.
Judge Panel:Ray, J. Henry, C. J., not sitting.
Case Date:November 15, 1886
Court:Supreme Court of Missouri
 
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2 S.W. 3 (Mo. 1886)

89 Mo. 650

Thorpe

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

November 15, 1886

Appeal from Jackson Circuit Court. -- Hon. F. M. Black, Judge.

Affirmed.

T. J. Portis and Bennett Pike for appellant.

(1) The objection by defendant to the introduction of any evidence under the petition, based upon the ground that said petition did not state facts sufficient to constitute a cause of action, should have been sustained, and the refusal of the court to so hold was error. Flynn v. Railroad, 78 Mo. 195; McMillon v. Railroad, 20 Barb. 449; Spelman v. Fisher Iron Co., 56 Barb. 151; Buzzell v. Laconia Man. Co., 48 Me. 113; 2 Thompson on Neg., p. 1050, sec. 47; Railroad v. Barber, 5 Ohio St. 541. (2) The court committed error in refusing to sustain the demurrer to the evidence by defendant at the close of all the testimony in this case. Railroad v. Barber, 5 Ohio St. 541; Huffman v. Railroad, 78 Mo. 52, 55. (3) The court erred in giving the instructions asked by plaintiff. Goetz v. Railroad, 50 Mo. 472; Devitt v. Railroad, 50 Mo. 304. (4) The court erred in refusing the instructions asked by defendant. (5) The instruction given by the court on its own motion was erroneous.

Woodson & Slaughter for respondent.

(1) The petition fully stated a cause of action. It is not necessary in an action for negligence even to allege that the plaintiff was not guilty of contributory negligence or was using due care and precaution. That is a matter of defence. Thompson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 509. Even if the allegation of lack of contributory negligence were necessary, the petition specifically states that fact. It certainly was not necessary to allege that plaintiff had no knowledge of the insufficiency of the help. Even if plaintiff had knowledge he may recover, if he is not guilty of contributory negligence, and knowledge is only a part of negligence. Flynn v. Railroad, 78 Mo. 195; Keegan v. Kavanaugh, 62 Mo. 230; Stoddard v. Railroad, 65 Mo. 514. (2) (a) There is entire agreement between the facts alleged in plaintiff's petition and those given in evidence. (b) Evidence tending to connect the accident to plaintiff with the failure in the company to furnish a sufficient number of hands to do the work required in making up trains, is full and complete. (c) It was for the jury to say, under instructions from the court, whether the accident occurred through the negligence of a fellow-servant or that of the railway company. (d) The fact that plaintiff continued in the employ of defendant after the fourth man was taken away, and he was aware there was some danger, does not preclude his right to recover. It is a primary duty devolving on the master to furnish proper instrumentalities and sufficient help. Because he fails in this the servant is not bound to leave his employment. But if he remains, it is a question for the jury to decide whether he assumed such risks as a prudent man would not incur. If not, then he may recover. Stoddard v. Railroad, 65 Mo. 514; Keegan v. Kavanaugh, 62 Mo. 230; Flynn v. Railroad, 78 Mo. 195. Plaintiff's own testimony does not show that three men were sufficient to do the work. (3) The instructions given on behalf of the plaintiff were proper, and presented the correct law of the case. The second ignores no fact which tends to show contributory negligence. Fitzgerald v. Hayward, 50 Mo. 516, and cases cited. Where the only defect in an instruction is that it contains an ambiguous or general term, it may be explained by another, and a partial view may sometimes be supplied, but the whole must be consistent and harmonious. Goetz v. Railroad, 50 Mo. 472. It was for the jury to say whether the plaintiff, by continuing in the employment of defendant after the fourth man was discharged, was guilty of negligence. Stoddard v. Railroad, 65 Mo. 514. The question of contributory negligence is usually one of fact for the jury under suitable instructions. Smith v. Railroad, 61 Mo. 588; Stoddard v. Railroad, 65 Mo. 514. When the question of negligence arises on a state of facts on which fair minded men may rationally arrive at opposite conclusions, the issue is properly submitted to the jury. Ernst v. Railroad, 3 Abb. [N. Y.] 82, 104; 35 N. Y.; 39 N.Y. 61. (4) The instruction asked for by the defendant on the question of contributory negligence was properly refused. It ignores the fact that the master and servant do not stand upon precisely the same footing. If the danger was not so apparent that remaining would be an act of recklessness, it was the right, and in cases might be the duty of the servant to remain for a time. Conroy v. Vulcan Iron Works, 62 Mo. 35; Keegan v. Kavanaugh, 62 Mo. 230; Stoddard v. Railroad, 65 Mo. 514; Flynn v. Railroad, 78 Mo. 195. (5) The instruction given by the court of its own motion was an accurate and concise statement of the law of contributory negligence under the evidence in the case. To constitute contributory negligence the danger must be so apparent or known to be so great that a man of ordinary prudence and caution would not have continued therein. Conroy v. Iron Works, 62 Mo. 35; Stoddard v. Railroad, 65 Mo. 514.

Ray, J. Henry, C. J., not sitting.

OPINION

[89 Mo. 654] Ray, J.

This is a suit for damages for personal injuries sustained by plaintiff, whilst in the employment of defendant as a switchman in its yards at Kansas City, Missouri. A trial thereof in the circuit court of Jackson county, resulted in a verdict and judgment in plaintiff's favor in the sum of twenty-five hundred dollars, from which defendant has appealed to this court. In his amended petition plaintiff charges a failure of duty on the part of defendant

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to furnish a sufficient number of hands in conjunction with plaintiff to carry on the business of making up trains in defendant's yards, and in conveying signals with proper dispatch and safety; that defendant was duly notified of this; that about the time of the injury plaintiff had gone between two of the cars, and had attempted to couple them; that failing to do so he stepped out and gave a stop signal, and then went again between the cars to effect the coupling, but that owing to the insufficiency of help employed to assist him, said stop signal failed to reach the foreman of the work, or the engineer, in consequence of which the foreman gave the signal to the engineer to back the cars, which the engineer did, and that plaintiff's hand was caught between two of said cars, and thereby injured, and that the same was caused...

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