24 S.W. 140 (Mo. 1893), Swadley v. The Missouri Pacific Railway Company

Citation:24 S.W. 140, 118 Mo. 268
Opinion Judge:Black, P. J.
Party Name:Swadley, by Next Friend, v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest and W. S. Shirk for appellant. W. M. Williams, J. H. Johnston and J. E. Hazell for respondent.
Judge Panel:Black, P. J. Barclay, J., absent.
Case Date:November 27, 1893
Court:Supreme Court of Missouri
 
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Page 140

24 S.W. 140 (Mo. 1893)

118 Mo. 268

Swadley, by Next Friend,

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

November 27, 1893

Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

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

(1) Defendant's objection to the introduction of any evidence should have been sustained. The petition does not state a cause of action, for at least two reasons: First. It shows upon its face, that the servants running and operating the train which jumped the track and injured plaintiff, were fellow servants with plaintiff. Summerbays v. Railroad, 2 Col. 484; Dow v. Railroad, 8 Kan. 642; Rohback v. Railroad, 43 Mo. 187; Whaaland v. Railroad, 8 Ohio St. 249; McGowan v. Railroad, 52 Mo. 372; Higgins v. Railroad, 104 Mo. 413; Schaub v. Railroad, 16 S.W. 924; Corbet v. Railroad, 26 Mo.App. 621; Murray v. Railroad, 98 Mo. 573; Sherwin v. Railroad, 103 Mo. 378; Harrison v. Railroad, 79 Mich. 409; Ely v. Railroad, 48 N.W. 222; Elliott v. Railroad, 38 Am. & Eng. R. R. Cases, 62; Parker v. Railroad, 19 S.W. 119. Second. It shows upon its face that plaintiff was walking along the defendant's right of way, going to a station; that he was not a passenger upon defendant's train, nor was he engaged in the performance of any duty toward defendant, and that defendant owed him no duty whatever, as to the rate of speed of its trains, nor the condition of its roadbed or track. And this is true, even if we admit that he was upon the right of way, at the time, as an employee. McKenna v. Railroad (K. C., Ct. App.); Henry v. Railroad, 8 Am. & Eng. R. R. Cases (Mich.), 110, on 112: Railroad v. Schertle, 2 Am. & Eng. R. R. Cases (Penn.) 158, on 163; Lucas v. Railroad, 40 F. 566; Richards v. Railroad, 47 N.W. 63. (2) Defendant's demurrer to the evidence should have been sustained. Railroad v. Brick, 21 Am. & Eng. R. R. Cases (N. Y.), 605; Rosenbaum v. Railroad, 34 Am. & Eng. R. R. Cases (Minn.) 274; Tuttle v. Railroad, 122 U.S. 189; Ward v. Bonner, 15 S.W. 805. (3) Plaintiff's evidence having wholly failed to show or explain the cause of the accident, he cannot recover. Elliott v. Railroad, 67 Mo. 272; Murphy v. Railroad, 71 Mo. 202; Bowen v. Railroad, 95 Mo. 268; Minty v. Railroad, 41 Am. & Eng. R. R. Cases, note on 554. So far as the plaintiff's evidence goes, the jury are left to grope in the dark as to the cause of the accident. And unless the cause of the accident was shown by the evidence the jury could not say it was brought about by defendant's negligence. Railroad v. Searley, 25 Am. & Eng. R. R. Cases, p. 358; Lucas v. Railroad, 40 F. 566; Railroad v. Smith, 38 Am. & Eng. R. R. Cases; Sauer v. Oil Co., 9 S. Rep. 566. (4) The court should have given defendant's instruction, at the close of all the evidence, to the effect that under the pleadings and all the evidence, the plaintiff was not entitled to recover. (See authorities cited to point 2, supra. (5) It was error to permit the witness Atkinson to testify as to the condition of the ties, on the first of August, nearly a month before the accident, especially as it had been already shown, by the plaintiff's own evidence, that the track had been repaired only a few days before the accident and that witness did not know what the condition of the track was on the first day of September. Stewart v. Ewing, 44 Am. & Eng. R. R. Cases, 313. (6) It was error to give plaintiff's first and second instructions. There is not sufficient evidence on which to base them.

W. M. Williams, J. H. Johnston and J. E. Hazell for respondent.

(1) The testimony showed that Reed was the foreman and had authority to direct the movements of the men under him. He was the representative of the defendant company and the orders given by him were the orders of the defendant itself. The plaintiff was at the place of the accident by orders of the defendant and was not a trespasser, but was there in the discharge of his duty as a servant of defendant. Sullivan v. Railroad, 107 Mo. 66; Cox v. Granite Company, 39 Mo.App. 424; McDermott v. Railroad, 87 Mo. 285; Dowling v. Allen, 89 Mo. 299; Moore v. Railroad, 85 Mo. 588. (2) The plaintiff being upon the right of way in the discharge of his duty, as an employee of the defendant, said defendant is liable to him for injuries sustained in consequence of its carelessness and negligence in having and maintaining its track in such a condition that it was not reasonably safe and secure. Stoher v. Railroad, 91 Mo. 509; S. C., 105...

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