Foster v. Missouri Pac. Ry. Co.

• Decision Date: 25 March 1893
• Citation: 115 Mo. 165,21 S.W. 916
• Parties: FOSTER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

21 S.W. 916

115 Mo. 165

FOSTER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 25, 1893.

INJURY TO EMPLOYE — CONTRIBUTORY NEGLIGENCE — VICE PRINCIPAL — FELLOW SERVANTS — PLEADING — HARMLESS ERRORS.

1. Plaintiff, under direction of defendant's road master, was one of a gang engaged in track work, distributing railroad ties, etc., and, while attempting to board a construction train, in response to an order of the road master, was hit by a heavy tie, thrown from the car by the men upon it. Held, in the circumstances stated in the opinion, that there was evidence of negligent direction of the work, and that the question of plaintiff's negligence was one for the jury.

2. The connection between the negligent order and plaintiff's injury discussed.

3. A master engaged in a complex business is bound to use ordinary care in directing its management, whether by means of needful rules or through the orders of its managers, foremen, etc. The latter are not fellow servants of employes under their orders in respect of the exercise by the former of their directing authority.

4. Employes working together under one common directing superior are fellow servants.

5. The trial court by instruction called for a finding of immaterial facts in addition to the substantive facts essential to plaintiff's case, but that error is held harmless.

6. Where, in answer to a question objected to, a witness states merely a fact already in evidence, without objection, and conceded throughout the trial, the ruling on the question is harmless.

7. An objection is generally too late after evidence has been given in fair response to a question unobjected to.

8. A petition for damages for personal injury discussed, and held to sufficiently allege a causal connection between the negligence and plaintiff's damage.

9. Under the Missouri Code a pleading should be liberally construed, and a general charge of negligence is sufficient after answer.

(Syllabus by the Judge.)

In banc. Appeal from circuit court, Johnson county.

Action by Foster against the Missouri Pacific Railway Company for personal injuries sustained while in the employment of defendant. There was judgment for plaintiff, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by BARCLAY, J.:

The action is for damages for personal injuries. Plaintiff had a verdict and judgment for $10,000, from which defendant appealed. The petition (omitting portions which are not in controversy) charges that "on the 2d day of June, 1890, plaintiff was in the employ of defendant as a section hand; and, as such, and in the line of his employment, was engaged, with others, in unloading a train of defendant's cars at and near the town of Lamonte, in Pettis county, Missouri; that on the last-named date one Pat Shehan was in the employ of defendant as a division road master, and as such was by defendant placed in, and by virtue of his employment had, charge and control of said train and of plaintiff and others unloading said train; that the said Pat Shehan, at that place, while acting for and in behalf of said defendant, as aforesaid, on the said 2d day of June, before said train was entirely unloaded, when he knew, or by the exercise of ordinary care could have known, that the same was not unloaded, negligently, carelessly, and recklessly ordered and directed said plaintiff to board said train; and that plaintiff, believing said train to be unloaded, and without fault or neglect on his part, and while engaged, as aforesaid, in the employment of defendant, attempted, in compliance with said order, to board said train, and while so doing the said Pat Shehan negligently, carelessly, and recklessly permitted a railroad tie to be unloaded and thrown from said train and cars against and upon plaintiff, striking him with great force and violence and upon the back and spinal column, paralyzing the left side of his body, permanently disabling him, rendering him unable to earn a livelihood, and causing him great mental and physical pain and suffering; and that by reason of the premises and the negligence and carelessness of the defendant and its said road master as herein stated, directly contributing thereto, plaintiff, while in the employ of defendant, in manner aforesaid, has been permanently injured, and rendered unable to earn a livelihood." The answer denies the allegations of the petition, and sets up contributory negligence on plaintiff's part, which is thereupon put in issue by the reply. The appeal was heard in the second division, and an opinion delivered in December, 1892, as follows:

"THOMAS, J. This suit is for damages on account of injuries sustained by plaintiff while engaged in the service of defendant. The basis of this claim, as set forth in the petition, is, in substance, this: That while, as one of several section men, engaged in unloading a train of cars, the division road master, before the train was unloaded, negligently gave an order to him to board the train, and that, as he was attempting obedience to the order, the road master negligently permitted a railroad tie to be unloaded and thrown from the car, which struck the plaintiff with great force, and seriously injured him. After a general denial, it was answered that plaintiff was injured through his own carelessness and that of his fellow employes. The evidence shows that three sets of section men, making in all 16 or 17, and of whom plaintiff was one, were brought together at Lamonte, for the purpose of unloading five or six cars of cinders and two of ties, to complete an extension of a passing track, just outside and west of the yards at that place. It was a work they were accustomed to do. An engine was attached to the cars, and drew them westwardly, distributing the cinders and ties along the route of the proposed track, stopping at intervals for this purpose. The cars loaded with cinders were next to the engine, and those with ties at the rear of the train. Some of the men were put to dumping the cinders, and others to throwing out the ties. The ties, which were in coal cars, the sides and ends of which were from 3 to 3½ feet high, were thrown out on the north side, ends first. After some of the cinders and ties had been unloaded, five or six of the men, among whom was the plaintiff, were sent by defendant's road master, who had charge of the men and work at that time and place, to shovel the cinders off the rails, and straighten out the unloaded ties left behind as the train moved forward in the distribution of these materials along the track. When plaintiff and his comrades had completed this work, they stood east of the hind car of the train, which was then stationary, plaintiff being on the north side of the track, or between the rails of the track. The road master was on the hind car, and asked plaintiff and the men with him if they were through, and, getting an affirmative answer, he gave the order `All aboard!' in an imperative manner. At the point where the car then stood there was a fill, and the evidence tends to prove that on the south side there was quite a decline, beginning at the end of the ties on which the rails of the track rested, so that it was difficult in some degree to pass along that side towards the front of the train; and, on the other hand, there was evidence to the effect that there was space enough between the end of the ties and the beginning of the incline to enable one to comfortably pass. On the north side the ground was level, but the ties and cinders that had been unloaded made this route also difficult for passage according to some of the witnesses, but according to others they were so small in number and amount that part of the way was not obstructed to any great extent. When the order `All aboard!' was given four or five men stood between plaintiff and the end of the car. All made a rush to get aboard, the men nearest the car climbing up at the rear end, but plaintiff ran along the north side, intending to get on at the forward end, and, when he had advanced a few feet, the road master called to him to look out. He dodged, but was too late, and a tie the men threw out according to some witnesses struck him between the shoulders, and according to others struck the ground, rebounded, and struck him, knocking him down, and injuring him seriously. The road master was on the car at the time he gave the order `All aboard!' and knew that all the ties had not been unloaded. Men standing on the ground could not see ties in the car, owing to the height of the side and end boards. Plaintiff and others testified that while they stood on the ground, just before the accident, they did not see the men in the car throwing out ties, and supposed when the order was given that the ties were all unloaded. It was customary for the men to get on at the end of cars of this kind, but sometimes they would get on at the sides. In this instance, owing to the height of the car, — it being 8 to 10 feet from the ground to the top of the side boards, — it was almost impracticable to board it from either side, especially from the south side, where there was quite a steep grade, and there were no means of climbing up at the rear end, except by the drawhead, and but one man at a time could ascend at that point. At the forward end there were a brake beam and another car in reach, besides the drawhead, to enable a person to board the car easily. There is no pretense that the men engaged in unloading the cars were guilty of negligence, as they could not see any one on the ground at the side of the car while stooping down to handle the ties. At the time of the injury it was near noon, and the men all knew that the train they were with must be moved to get out of the way of a passenger train, then nearly due, and from that fact, and from the tone and manner of the road master in giving the order `All aboard!' they supposed expedition on their part was required, and plaintiff...