21 S.W. 862 (Mo. 1893), Murphy v. Wabash Railroad Company

Citation:21 S.W. 862, 115 Mo. 111
Opinion Judge:Black, P. J. --
Party Name:Murphy v. The Wabash Railroad Company, Appellant
Attorney:F. W. Lehmann and G. S. Grover for appellant. Alexander H. Waller for respondent.
Case Date:March 25, 1893
Court:Supreme Court of Missouri
 
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Page 862

21 S.W. 862 (Mo. 1893)

115 Mo. 111

Murphy

v.

The Wabash Railroad Company, Appellant

Supreme Court of Missouri, First Division

March 25, 1893

Appeal from Randolph Circuit Court. -- Hon. J. A. Hockaday, Judge.

Affirmed.

F. W. Lehmann and G. S. Grover for appellant.

(1) There was no proof of negligence on the part of defendant. Wood's Master & Servant, sec. 329; Burke v. Withrow, 98 N.Y. 565; Railroad v. Lonergan, 118 Ill. 48; Bowen v. Railroad, 95 Mo. 268; Bohn v. Railroad, 106 Mo. 429; Railroad v. Stewart, 13 Lea (Tenn.), 432; Smith v. Railroad, 69 Mo. 32; Railroad v. Coleman, 28 Mich. 440; Railroad v. Judson, 34 Mich. 506; Clark v. Railroad, Scotch Sess. Cases [4 Series] 273; Pequigno v. Railroad, 12 Am. & Eng. Railroad Cases, 210; Sjogren v. Hall, 53 Mich. 274; City v. Zimmerman, 95 Pa. St. 287; Crafter v. Railroad, L. R. 1 C. P. 300; Morris v. Railroad, 9 Cent. Rep. 288. (2) The evidence shows affirmatively that the accident was due to the plaintiff's own negligence in unnecessarily exposing himself to peril. McKee v. Railroad, 50 N.W. 209. (3) The plaintiff assumed the risk of injury when he proceeded to tighten the coupling in the manner he did. Hulett v. Railroad, 67 Mo. 239; Rains v. Railroad, 71 Mo. 164. (4) The court erred in admitting testimony of the movements of the other sections of the plaintiff's train.

Alexander H. Waller for respondent.

(1) Respondent was entitled to a safe and unobstructed track, and appellant owed him this duty; and to this end appellant was bound to place its fences and other structures used in connection with its road at a reasonably safe distance from the track so as not to be dangerous to respondent or to any of its employes operating its trains whilst discharging any of their duties, and a failure to do so is negligence. Somers v. Railroad, 9 S.W. (Tex.) 741; Johnson v. Railroad, 41 Am. & Eng. Railroad Cases (Minn.), 293; Hall v. Railroad, 16 F. 744; Railroad v. Russell, 91 Ill. 300; Railroad v. Davis, 9 South. Rep. (Ga.) 252; Stackman v. Railroad, 80 Wis. 428; Babcock v. Railroad, 23 N.E. 325 (Mass) ; Railroad v. Johnson, 31 Ill.App. 185; Nugent v. Railroad, 38 Am. & Eng. Railroad Cases (Me.), 53; Scanlan v. Railroad, 38 Am. & Eng. Railroad Cases (Mass.), 48; Pidcock v. Railroad, 19 P. 191; Railroad v. Oram, 49 Texas, 341; Railroad v. Wright, 16 N.E. 145; Hall v. Railroad, 6 South. Rep. (Ala.) 277; Railroad v. Irwin, 16 P. 146; Gregg v. Railroad, 52 N.W. 63. (2) Respondent had no actual knowledge that said fence was dangerously near to the track, and he was not bound to ascertain for himself. He had the right to assume that appellant would do its duty, and that it would not subject him, while discharging his duties, to such extraneous peril. Gutridge v. Railroad, 105 Mo. 526; Devlin v. Railroad, 87 Mo. 545; Waldhier v. Railroad, 87 Mo. 37. (3) Engineers, brakemen and other trainmen will not be presumed to have notice respecting fences merely because they run over the road. Besides, the fence had been standing three years, and this was respondent's third trip over that part of the road, in daylight, in four years. Magee v. Railroad, 21 P. 114. (4) Negligence is not susceptible of direct proof, but if found must be inferred from the facts and circumstances of the case. The facts and circumstances in this case fully support the averments of the petition, and, from these facts and circumstances, the jury inferred and found that appellant was negligent with respect to this fence; and in this case, negligence was a proper question for the jury. Rine v. Railroad, 100 Mo. 234; Soeder v. Railroad, 100 Mo. 673; Tabler v. Railroad, 93 Mo. 85. (5) Respondent cannot be held negligent as a matter of law. He was performing a pressing duty, suddenly called upon to do, and his undertaking was not in itself perilous to a man of his years, build and activity. The question of contributory negligence was properly submitted to the jury. Barry v. Railroad, 98 Mo. 70; Wilkins v. Railroad, 101 Mo. 106; Maus v. City of Springfield, 101 Mo. 618; Sullivan v. Railroad, 107 Mo. 76. The question whether the respondent was engaged in the prudent discharge of his duties was submitted to the jury; and the jury having found that he was, the appellate court will not interfere. Gutridge v. Railroad, 105 Mo. 529. (6) Respondent, in his undertaking, assumed all the risk incident to and directly resulting from his act, such as losing his hold and falling, being jostled off by the lurching of the train, etc., for these he knew of, and could guard against; but he did not assume the (to him) unknown and unsuspected peril arising from appellant's negligent act in erecting its fence within fifteen or sixteen inches of passing trains. Dayharsh v. Railroad, 103 Mo. 576; Hough v. Railroad, 100 U.S. 213. (7) The court did not err in admitting testimony with reference to the movements of other sections of the train, or as to meeting trains. All the facts and circumstances tending to elucidate plaintiff's duty and conduct, in view of his situation and surroundings, were necessary to enable the trial court first, and the jury afterward, to determine the question of his alleged contributory negligence. Beach on Contributory Negligence [1 Ed.] sec. 163, p. 159; Buesching v. Gas Light Co., 73 Mo. 219.

OPINION

[115 Mo. 115] Black, P. J. --

The plaintiff obtained judgment in the circuit court for personal injuries received by him while in the employ of the defendant in the capacity of an engineer. The substantial averments of the petition are, that the defendant negligently erected and maintained a fence on its right of way so close to its track as to imperil the lives and limbs of its servants engaged in operating trains, by reason of all of which he was struck and dragged from his engine.

The errors assigned are:

1. That there was no proof of negligence on the part of the defendant.

2. The evidence shows that the accident was due to the plaintiff's own negligence, and the court should have so declared.

3. The plaintiff assumed the risk of injury when he attempted to tighten the hose coupling.

4. The court should have excluded the evidence as to the movements of the other sections of the same train.

The first and second of these objections render it necessary to state the evidence with some detail: The accident occurred in May, 1890. The plaintiff was a sprightly man, twenty-seven years of age. He...

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