24 S.W. 1053 (Mo. 1894), Rutledge v. The Missouri Pacific Railway Company

Citation:24 S.W. 1053, 123 Mo. 121
Opinion Judge:Barclay, J.
Party Name:Rutledge v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest and William S. Shirk for appellant. Ryors & Vosholl, J. W. Zevely and I. W. Boulware for respondent.
Judge Panel:Barclay, J. Black, C. J., and Brace, J., concur. Macfarlane, J., dissenting. Macfarlane Macfarlane, J. (dissenting).
Case Date:June 18, 1894
Court:Supreme Court of Missouri

Page 1053

24 S.W. 1053 (Mo. 1894)

123 Mo. 121



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

June 18, 1894

Rehearing Denied 123 Mo. 121 at 140.

Appeal from Osage Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Reversed and remanded.

H. S. Priest and William S. Shirk for appellant.

(1) The plaintiff's objection to the introduction of any evidence, because the petition does not state a cause of action, should have been sustained. Rutledge v. Railroad, 110 Mo. 312; Shearman & Redf. on Negligence, secs. 25, 26; Harlan v. Railroad, 65 Mo. 22, et. seq. The petition alleges that the act which caused plaintiff's injury was that "some agent of the defendant in charge of the engine caused the train of cars to be moved, with great force," and that defendant's failure to prescribe a system of signals and rules for their use, was "directly the cause" of the train being moved -- a mere conclusion, but how or why it was directly the cause is nowhere averred, nor are there any facts stated in the petition from which it can even be inferred that the absence of a system of signals or rules caused the train to suddenly move. (2) The demurrer to plaintiff's evidence should have been sustained, and this for many reasons. Harper v. Railroad, 44 Mo. 488; Waldhire v. Railroad, 71 Mo. 514; Bullene v. Smith, 73 Mo. 151; Ischer v. Bridge Co., 95 Mo. 261; O'Brien v. Steele Co., 100 Mo. 182; Humphrey v. Railroad, 110 Mo. 312. (3) The uncontradicted and undisputed evidence, both for plaintiff and defendant, shows -- in fact it stands admitted -- that the defendant had made and published a system of signals to be used by its employees. Plaintiff's only complaint at the trial was, that with this system or code of signals to govern the movement of engines and trains, there was not a printed rule or command saying, in effect, that such signals should only be given by the employee who wanted to start or stop the train. But such express rule or command was wholly unnecessary, because it is necessarily implied, from the mere making and publishing of the system of signals. Corcoran v. Railroad, 27 N.E. (N. Y.) 1022. (4) And not only was this necessarily implied, but it was actually so understood from such code of signals by plaintiff and all the employees in the yards at Chamois. And it could not have been reasonably anticipated by defendant that anyone but the employee who wanted the train moved would give such signal. In such case, defendant is not liable for not having promulgated such a rule. Berrigan v. Railroad, 30 N.E. (N. Y.) 57; Morgan v. Railroad, 31 N.E. (N. Y.) 234; Burke v. Railroad, 23 N.Y. 458. It was not shown that any other railroad company in America, Europe or England had any such rule. Lawson v. Railroad, 15 N.Y. 384. (5) It was error to give to the jury the plaintiff's first instruction. Waddingham v. Hulet, 92 Mo. 528; Gessley v. Railroad, 26 Mo.App. 156; Abbott v. Railroad, 83 Mo. 272. (6) It was error to permit the plaintiff to testify what the result would have been if there had been a certain rule prescribed. Such evidence is merely conjectural. Rutledge v. Railroad, 110 Mo. 312; Winters v. Railroad, 39 Mo. 468. (7) The verdict of the jury is against the evidence, and in contempt of the instructions of the court given on behalf of the defendant, and is the result of prejudice and passion. Such a verdict would have been impossible, if the jury had considered the uncontradicted and undisputed evidence and the admitted facts in the case and then obeyed the instructions of the court. Oglebay v. Corby, 96 Mo. 285; Hemelrich v. Carlos, 24 Mo.App. 264; Clark v. Fairley, 30 Mo.App. 335; Brewery Co. v. Bodeman, 12 Mo.App. 573; O'Donnell v. Railroad, 7 Mo.App. 190. The verdict, being for $ 10,000 for the loss of an arm, in the absence of any circumstances of aggravation or gross carelessness, is excessive.

Ryors & Vosholl, J. W. Zevely and I. W. Boulware for respondent.

(1) The petition is sufficient, and clearly states a cause of action. Shearman & Redfield on Negligence [3 Ed.], sec. 93; 14 Am. and Eng. Encyclopedia of Law, 907; Abel v. President, etc., 103 N.Y. 581; Railroad v. Lavely, 36 Ohio St. 221; Shehan v. Railroad, 91 N.Y. 332; Vose v. Railroad, 2 H. and N. 728; Railroad v. Taylor, 69 Ill. 461; Ford v. Railroad, 124 N.Y. 493; Byrnes v. Railroad, 113 N.Y. 251; Whittaker v. President, etc., 126 N.Y. 544; Doss v. Railroad, 59 Mo. 27; Reagan v. Railroad, 93 Mo. 325; Rutledge v. Railroad, 110 Mo. 312; Abel v. President, etc., 128 N.Y. 662; Francis v. Railroad, 110 Mo. 387; (2) And this matter of the sufficiency of this petition is, in this case, res adjudicata. Rutledge v. Railroad, 110 Mo. 312; Musser v. Brink, 80 Mo. 350; Anderson v. McPike, 41 Mo.App. 330; Wells on Res Adjudicata, secs. 513, 617. (3) The damages are not excessive. Dougherty v. Railroad, 97 Mo. 48; Dowling v. Allen, 102 Mo. 215; Gratiot v. Railroad, 21 S.W. 1094. (4) The court properly declared the law to the jury, and if error exists it was in favor of appellant. (5) It was not error for the court to refuse to instruct the jury that if he remained in employ of defendant after he knew that no rule had been published or established for the protection of employees, as claimed in his petition, he could not recover on the ground of the absence of such rule. Such a doctrine is not applicable to this case. The decisions cited by counsel for defendant are all applicable to cases involving dangers arising from machinery and dangers arising apparent alike both to master and man. The law in this case is "dangers connected with a business which are unavoidable after the exercise by the master of proper care and precaution, are risks incident to the business and assumed by the servant." Flynn v. Railroad, 78 Mo. 195; McGovern v. Railroad, 25 N.E. 373; Ford v. Railroad, 124 N.Y. 493; Morgan v. Ore and Iron Co., 15 N.Y.S. 609; Huhn v. Railroad, 92 Mo. 440; Reagan v. Railroad, 93 Mo. 348. (6) This court will take judicial notice of its record in the former appeal in this case. 12 Am. and Eng. Encyclopedia, 183; State v. Bowen, 16 Kan. 475; Bank v. Bryan, 13 Bush. (Ky.) 419. This court will take judicial notice of the manner in which railroads in this country are managed. Downley v. Hendrie, 46 Mich. 498; Bank v. Earle, 13 Pet. (U.S.) 519. (7) There is no variance or failure of proof. The evidence shows a sudden movement backward without notice. This matter of variance is also res adjudicata in this case. Rutledge v. Railroad, 110 Mo. 312. (8) The evidence, taken as a whole, clearly shows the existence of a custom amongst the employees, and the nonexistence of a rule concerning such custom. The existence of such a custom only emphasizes the neglect of the master. Authorities cited before; Ford v. Railroad, 124 N.Y. 493; Abel v. President, etc., 103 N.Y. 581; Rutledge v. Railroad, 110 Mo. 312. (9) The evidence does show that the engineer gave the sudden motion (without notice to plaintiff), upon a signal received from a servant of defendant, but not the plaintiff. (10) It is conceded that the law requires of a railroad company diligence and care, not only in furnishing proper and reasonably safe appliances and machinery, and skillful and careful employees, but also to make and promulgate rules for the management and conduct of its business, which, if faithfully observed, will afford its employees reasonable protection. Rutledge v. Railroad, 110 Mo. 312; Abel v. President, etc., 103 N.Y. 581; Reagan v. Railroad, 93 Mo. 348; Abel v. President, etc., 128 N.Y. 662.

Barclay, J. Black, C. J., and Brace, J., concur. Macfarlane, J.,...

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