O'Malley v. Missouri Pacific Railway Company

Decision Date31 December 1892
PartiesO'Malley v. The Missouri Pacific Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.

Reversed.

M. F Watts and Tyson S. Dines for appellant.

(1) The court erred in giving the instruction given for plaintiff. The demurrer to the evidence should have been sustained for the following separate and independent reasons, any one of which must be fatal to respondent's case: First. The evidence wholly failed to show a dangerous condition of the tunnel on the sixteenth day of May, 1887, when deceased entered. Second. Even if such dangerous condition existed the evidence wholly failed to show any knowledge of such condition on the part of appellant, or of any facts which might suggest such condition to appellant. Third. The evidence failed to show the cause of the death of respondent's husband. Fourth. The risk, if any existed, was manifestly one incident to the employment of deceased, and was assumed by him when he entered that employment. He had been in defendant's employ, as one of the "tunnel gang," for five or six years, and had as good an opportunity as defendant, or any of its officers, servants or agents, to know of the condition of the tunnel. Priestly v. Fowler, 3 M. & W. 1; Railroad v. Davis, 15 S.W. 895; Tabler v. Railroad, 93 Mo. 79; Devitt v. Railroad, 50 Mo. 302; Price v. Railroad, 77 Mo. 508; Railroad v. Abbott, 23 A. 310; Railroad v. Thomas, 42 Ala. 672. Authorities cited generally in support of the demurrer to the evidence. Cotton v. Wood, 8 C. B. (N. S.) 568; Hughes v. Railroad, 16 S.W. 275; Commissioners v. Clark, 94 U.S. 284; Powell v. Railroad, 76 Mo. 80; Bowen v. Railroad, 95 Mo. 268; Current v. Railroad, 86 Mo. 62; Armour v. Hahn, 111 U.S. 313.

J. R. Myers and J. M. Holmes for respondent.

(1) The tunnel on the day in question was in an unusually dangerous condition, owing to the unusual accumulation of smoke and gas, caused by the stoppage for eight hours of the ventilator. (2) The stoppage of the fan was not the result of an outside accident; it was stopped by the officers and agents of appellant, and appellant is chargeable with notice of the fact and of its necessary consequences. Kelly v. Railroad, 75 Mo. 138; Frick v. Railroad, 75 Mo. 595; Flynn v. Railroad, 78 Mo. 208; Russell v. Columbia, 74 Mo. 480; Bassett v. St. Joseph, 53 Mo. 290; Welsh v. St. Louis, 73 Mo. 71; Loewer v. Sedalia, 77 Mo. 444; Stevens v. Macon City, 83 Mo. 357; Thompson on Trials, sec. 1706. (3) The accumulation of smoke and gas on said day was sufficient to endanger human life, and that O'Malley was in point of fact suffocated by reason of such accumulation. (4) No proof of contributory negligence on the part of O'Malley was shown, and contributory negligence cannot be presumed. Buesching v. Gas Co., 73 Mo. 229. (5) There was no material variance between the allegations and the proof, and if there were appellant is not in a condition to avail itself of it. Revised Statutes, sec. 2096. (6) No warning of any kind was given to O'Malley as to the condition of the tunnel.

OPINION

Macfarlane, J.

The action is by plaintiff to recover the statutory damages for the death of her husband, John O'Malley, by reason of the alleged negligence of defendant.

The petition charged that defendant owned a railroad tunnel from the Union depot, in the city of St. Louis, under the city, to the bridge which crosses the Mississippi river, and was engaged on the sixteenth of May, 1887, in running locomotives and cars through the same; that, for the purpose of ventilating the same, and keeping it free from the accumulations of steam, smoke and noxious and poisonous gases, defendant operated a fan, placed in an air shaft leading into said tunnel; that without the aid of the ventilation produced by said fan said tunnel was liable to become filled with steam, smoke, noxious and poisonous gases to an extent which made it dangerous to enter therein; that, on said day, the said fan was not operated, and the tunnel, by reason thereof, had become filled, to an unusual degree, with steam, smoke and noxious gases, which was well known to defendant, and unknown to her husband, John O'Malley; that, while the tunnel was in this dangerous condition, defendant negligently ordered her said husband to go into the tunnel, and, by reason of obeying said order, he was choked, strangled and killed by smoke, steam, vapor and poisonous gases. The answer was a general denial.

The evidence established the following undisputed facts:

The tunnel, with two railroad tracks, extends from the Union depot, in St. Louis, to the Mississippi river, a distance of forty-eight hundred feet, running first north from the depot, and curving to the east at the corner of Seventh and St. Charles streets. At the curve, for the purpose of ventilation, a large air shaft opens into the tunnel. This shaft is one hundred and twenty-five feet high, twenty feet in diameter at the base and nine feet at the top. In this shaft is constructed a fan about fifteen feet in diameter which is revolved by steam power. The last opening of the tunnel is about Main street. The same power which revolves the fan also generates electric lights in the tunnel. On the sixteenth of May, 1887, some of the machinery connected with the engine was under repair, and neither the fan nor electric lights were in use.

John Wynn was a roadmaster of defendant, who had superintendence of the tracks in defendant's yards and the tunnel. Under him a section foreman named Dean had charge of what is known as the "tunnel gang" of laborers who kept the tracks in the tunnel and near the entrances in order. John O'Malley, the husband of plaintiff, belonged to this "tunnel gang" under said foreman. Dean was about sixty-five years of age, of slight build, fair complexion, and had been employed in the same duties five or six years. While he belonged to the "tunnel gang" the evidence showed that his principal duties consisted in keeping the tracks in the yards near the entrance to the tunnel clean, though he was occasionally sent into it.

On the afternoon of May 16, 1887, Mr. Crews, an attorney, and McCune, a deputy marshal, called upon roadmaster Wynn and asked for foreman Dean, upon whom they wished to serve some legal papers. Wynn directed a man named Finnegan to go down to the yard, near the mouth of the tunnel, and point out Dean to them, and directed him, if he did not see Dean working in the yard, to see O'Malley who would probably know where Dean was working, and tell him to go a few feet into the tunnel and call Dean out. Finnegan went down with the two men and told O'Malley that Mr. Wynn wished him to find out where Dean was working and get him out. These men wished to see him on business. O'Malley informed them that Dean was working under Main street and advised them that if they would go to that entrance they would find him there at work. Nothing more was shown to have been said. Finnegan left, and O'Malley lit his lamp and went into the tunnel. This was between four and five o'clock in the afternoon. About 8:30 o'clock O'Malley was found about the middle of the tunnel dead. He was found lying a few feet from the track and had a small bruise under the eye, a bruise on the hip and one leg crushed between the knee and ankle. After he was taken out that night and also the next morning, his face was of a dark color and his lips bore a purple hue. Expert witnesses testified that the color of the face and lips indicated death from strangulation or asphyxiation. The same witnesses also gave their opinion as experts that death did not result from the injuries found upon him, though he may have died from the shock which followed the injuries. The evidence on certain vital questions will be considered more in detail in the opinion.

At the close of the evidence introduced by plaintiff, defendant asked an instruction to the effect that, upon the pleadings and evidence, plaintiff could not recover. This the court refused. Defendant offered no evidence.

The issues were submitted to the jury upon a series of instructions to which no objection is made, except it is insisted that there was no evidence upon material questions of fact upon which they could properly have been predicated.

There are a few underlying legal principles which will aid us in determining whether there was evidence offered in the case, from which an inference of negligence could have been fairly drawn, which, though well settled, may be properly restated.

I. In actions for damages on account of injuries caused by negligence, the burden of proving the negligence always rests upon the party asserting it, and, unless it is shown by evidence legally sufficient, the action must fail. Dowell v. Guthrie, 99 Mo. 653, 12 S.W. 900; Murray v. Railroad, 101 Mo. 236, 13 S.W. 817.

II. It is the province of the court to determine all questions of law in ...

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