21 S.W. 1110 (Mo. 1893), Schlereth v. The Missouri Pacific Railway Company

Citation:21 S.W. 1110, 115 Mo. 87
Opinion Judge:Burgess, J. --
Party Name:Schlereth v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest and H. G. Herbel for appellant. E. P. Johnson for respondent.
Judge Panel:Burgess, J. Black, C. J., Brace and Macfarlane, JJ., concur. Barclay, J., concurs in a separate opinion. Sherwood, J., and Gantt, J., dissent. Barclay Gantt Gantt, J. (dissenting.)
Case Date:March 20, 1893
Court:Supreme Court of Missouri
 
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Page 1110

21 S.W. 1110 (Mo. 1893)

115 Mo. 87

Schlereth

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

March 20, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Affirmed.

H. S. Priest and H. G. Herbel for appellant.

(1) The court erred in admitting incompetent and illegal evidence offered by plaintiff against defendant's objections. Stephens v. Railroad, 96 Mo. 214; Beems v. Railroad, 58 Iowa 150; s. c., 6 American & English Railroad Cases, 227; Railroad v. Gower, 85 Tenn. 465; s. c., 31 American & English Railroad Cases, 168; Railroad v. Reeves, 11 S.W. 465; Railroad v. Roy, 102 U.S. 459; Gourley v. Railroad, 35 Mo.App. 87; Igo v. Railroad, 38 Mo.App. 377. (2) The court erred in overruling defendant's demurrers to the evidence. Harlan v. Railroad, 65 Mo. 25; s. c., 64 Mo. 480; s. c., 66 Mo. 26; Lennox v. Harrison, 88 Mo. 496; Breckenridge v. Ins. Co., 87 Mo. 77; Fitzgerald v. Barker, 85 Mo. 22; Railroad v. York, 12 S.W. 70; Kennedy v. Railroad, 43 Mo.App. 3; Bell v. Railroad, 86 Mo. 612; Fath v. Railroad, 16 S.W. 915; Robertson v. Railroad, 84 Mo. 121; Reagan v. Railroad, 93 Mo. 352; Barker v. Railroad, 98 Mo. 53; Couley v. Railroad, 38 Minn. 81; Taylor v. Railroad, 86 Mo. 462; Lenix v. Railroad, 76 Mo. 91; Loeffler v. Railroad, 96 Mo. 267; Higgins v. Railroad, 16 S.W. 409; Schaub v. Railroad, 16 S.W. 924; Corbett v. Railroad, 26 Mo.App. 628; Murray v. Railroad, 12 S.W. 252; Elliot v. Railroad, 38 American & English Railroad Cases, 62; Railroad v. Wachter, 60 Md. 395; s. c., 15 American & English Railroad Cases, 191. (3) The court erred in refusing to give the instructions asked by defendant. Railroad v. Wachter, 60 Md. 395; Williams v. Railroad, 96 Mo. 280. (4) The court erred in giving the instructions it did at plaintiff's instance. Dahlstrom v. Railroad, 96 Mo. 102; Bell v. Railroad, 72 Mo. 50; Stillson v. Railroad, 67 Mo. 671; Fath v. Railroad, 16 S.W. 915; Robertson v. Railroad, 84 Mo. 121; Thomas v. Babb, 45 Mo. 384; Duke v. Railroad, 99 Mo. 351; Gessley v. Railroad, 26 Mo.App. 161; Railroad v. State, 41 Md. 272. (5) The instructions given by the court of its own motion were erroneous. Railroad v. Ryder, 62 Tex. 270; Wilmott v. Railroad, 16 S.W. 502; Zimmerman v. Railroad, 76 Mo. 490; Devitt v. Railroad, 50 Mo. 305; Ravenscraft v. Railroad, 27 Mo.App. 623; Barr v. K. C., 16 S.W. 485; Stoher v. Railroad, 91 Mo. 518. (6) The court erred in not rebuking plaintiff's counsel for making the remarks objected to by defendant in his address to the jury. (7) The verdict was excessive, and the court erred in not sustaining defendant's motion for new trial.

E. P. Johnson for respondent.

(1) The running of the engine had no connection with the work of the section men in this case, and Schlereth was not a fellow-servant with the trainmen runnning the engine. Dayharsh v. Railroad, 103 Mo. 570; Sullivan v. Railroad, 97 Mo. 113; Schlereth v. Railroad, 96 Mo. 509; Tabler v. Railroad, 93 Mo. 79; Smith v. Railroad, 92 Mo. 359; Moore v. Railroad, 85 Mo. 588; Hall v. Railroad, 74 Mo. 301; Lewis v. Railroad, 59 Mo. 495. (2) Schlereth, although on his way to work, was not on duty in the sense of that term that would have deprived him of a right of action for an injury caused by the negligence of a fellow-servant. Baird v. Pettet, 70 Pa. St. 481; Railroad v. Trainor, 33 Md. 554; State v. Railroad, 63 Md. 433; O'Donnell v. Railroad, 59 Pa. St. 245; Russell v. Railroad, 5 Duer, 41; Washburn v. Railroad, 3 Head, 638; Hutchinson v. Railroad, 6 Am. & Eng. Railroad Cases, 588; Carroll v. Railroad, 88 Mo. 245. (3) The engineer of the engine that struck deceased had the entire control of it at that time, and therefore directly represented the appellant, as much so as if he had been its president; and he was running said engine on the time of a regular train. These facts being undisputed, the question of fellow-servant, as between said engineer and deceased, does not properly arise in this case. Miller v. Railroad, 19 S.W. 58; Bluedorn v. Railroad, 18 S.W. 1103; Dixon v. Railroad, 19 S.W. 412. (4) When this case was here before it was reversed and remanded. One of the points then insisted on was, that the deceased and said engineer were fellow-servants. The opinion reversing the case makes no mention of this point; but it was necessarily decided in favor of respondent, or the case would not have been remanded. Nutter v. Huston, 42 Mo.App. 363; Hayden v. Grillo, Id. 1, and the question is now res adjudicata and should not be disturbed; Bank v. Taylor, 62 Mo. 338; Belch v. Miller, 37 Mo.App. 628. (5) The presumption of law is, that Schlereth was exercising ordinary care at the time of his injury, and was not guilty of contributory negligence (but appellant under the instructions had the full benefit of such a plea). Parsons v. Railroad, 94 Mo. 286; Petty v. Railroad, 88 Mo. 320; Schum v. Railroad, 77 Pa. St. 8; Swigert v. Railroad, 75 Mo. 480; Buesching v. Gas Co., 73 Mo. 233; Flynn v. Railroad, 78 Mo. 195 (6) The petition was sufficient to authorize a recovery on the ground that the servants of respondent might, by the exercise of ordinary care, have seen the deceased in peril in time to have avoided injuring him. Hilz v. Railroad, 101 Mo. 36; Kellney v. Railroad, 101 Mo. 67; Neir v. Railroad, 12 Mo.App. 35; Carroll v. Railroad, 88 Mo. 241; Carlisle v. Packet Co., 82 Mo. 42; Mack v. Railroad, 77 Mo. 234; Ellet v. Railroad, 76 Mo. 535. (7) The court should also have instructed the jury to render a verdict in the sum of $ 5,000, under the first clause of section 2121, Revised Statutes, 1879; Becke v. Railroad, 102 Mo. 544; King v. Railroad, 98 Mo. 235; Crumpley v. Railroad, 98 Mo. 34; Sullivan v. Railroad, 97 Mo. 113.

Burgess, J. Black, C. J., Brace and Macfarlane, JJ., concur. Barclay, J., concurs in a separate opinion. Sherwood, J., and Gantt, J., dissent.

OPINION

Page 1111

[115 Mo. 92] In Banc.

Burgess, J. --

This is the second appeal by defendant in this case. The opinion of the court on the first appeal will be found reported in 96 Mo. 509, 10 S.W. 66, including a full and fair statement of all the facts of the case as they existed at that time.

After the case was reversed and remanded defendant filed an amended answer alleging contributory negligence and with that exception the case was tried on the pleadings as they were at the time of the first trial. The evidence tended to establish the theory of the plaintiff and also contributory negligence on the part of deceased.

At the close of the case defendant prayed the court to instruct the jury as follows:

"1. Now comes defendant and moves the court, at the close of the testimony in the whole case, to instruct the jury that under the evidence and pleadings in the above entitled cause, the plaintiff is not entitled to recover.

"2. If the jury find from the evidence that the deceased husband of plaintiff at the time of and prior to the accident had been engaged and employed as such track repairer upon the tracks of defendant's railway on the section of such railroad extending west from Tower Grove station thereon in the city of St. Louis to Sutton a distance of about five miles for several years immediately prior to the time of said accident to him; that just prior to the accident by which he lost his life he started to walk from said Tower Grove station upon a track of defendant to a point near said King's Highway on said railway to engage in the repairing of defendant's tracks thereat, and if the jury further find from the evidence that the said employment of the said deceased by defendant necessarily brought him frequently and constantly into contact [115 Mo. 93] with the traffic of defendant's railway, while actually engaged in his said work on the said road and in going to and returning from his said work thereon, the risk of injury from the carelessness and negligence of those managing that traffic or engaged in operating engines, cars and trains of cars of defendant upon the tracks upon said line of railway at the place of the accident was one of the risks naturally and reasonably incident to the employment and engagement of said deceased by said defendant, and was one of the risks that the deceased husband of plaintiff assumed when he went into and remained in such employment.

"3. The court instructs the jury that the deceased husband of plaintiff, Anton Schlereth, while walking upon the tracks of defendant's railway between Tower Grove station, situated near said railway, and King's highway, in said city of St. Louis, was a trespasser thereon, and if the jury find from the evidence that there were no streets crossing said tracks from said Tower Grove station to a point on said tracks where he was struck, then the defendant's employes were not bound to watch for him on said tracks, and the defendant can only be liable for injury to said deceased while so walking on said tracks for failure of the engineer in charge of said engine to use all reasonable means in his power to avoid striking him after seeing and discovering the peril that he was in, and if the jury further find from the evidence that the engineer in charge of said engine immediately upon discovering the danger of said deceased upon said tracks sounded the whistle, reversed his engine and applied the air brake, then he was guilty of no negligence, and there should be no recovery in this case upon such alleged ground of negligence.

"4. Although the jury may find from the evidence that defendant's employes in charge of the locomotive [115 Mo. 94] engine were guilty of negligence in running the same at the time of the accident at a greater rate of speed than six miles an hour or in failing to ring the bell constantly while running on the track of defendant's...

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