27 S.W. 453 (Mo. 1894), Burdict v. The Missouri Pacific Railway Company

Citation:27 S.W. 453, 123 Mo. 221
Opinion Judge:Burgess, J.
Party Name:Burdict v. The Missouri Pacific Railway Company, Appellant
Attorney:Elijah Robinson for appellant. F. W. Randolph and Beebe & Watson for respondent.
Judge Panel:Burgess, J. Black, C. J. Brace, Macfarlane and Burgess, JJ., concur. Barclay, Gantt and Sherwood, JJ., dissent from what is said in this supplemental opinion. Barclay; Gantt Barclay, J. (dissenting).
Case Date:June 18, 1894
Court:Supreme Court of Missouri

Page 453

27 S.W. 453 (Mo. 1894)

123 Mo. 221



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

June 18, 1894

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.


Elijah Robinson for appellant.

(1) Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care under the circumstances, in endeavoring to perform a noncontractual duty implied by law, which failure is the proximate cause of injury to the person to whom the duty is due. 16 Am. and Eng. Encyclopedia of Law, p. 389; Bishop on Noncontract Law, sec. 436; Wharton on Negligence, sec. 3; Shearman & Redfield on Negligence, sec. 3. (2) There can be no negligence in the absence of a legal duty due from one person to another. O'Callaghan v. Cronin, 121 Mass. 114; Cooley on Torts, p. 60; Kerwhacker v. Railroad, 3 Ohio St. 188; Wharton on Negligence, secs. 3 and 24; Rich v. Railroad, 87 N.Y. 382; Shearman & Redfield on Negligence, sec. 9; Kahl v. Love, 37 N. J. Law, 5; Railroad v. Stark, 38 Mich. 714; Miller v. Woodhead, 174 N.Y. 471; Mahan v. Brown, 13 Wend. 261. (3) And this duty must be imposed by law. Bishop on Noncontract Law, secs. 132 and 133; Boyden v. Burk, 14 How. 575-583; Wharton on Negligence, sec. 24. (4) The accident resulting in plaintiff's injury occurred in Kansas; and before there could be any recovery, it must have been shown that some law, in force in the state of Kansas, imposed upon the defendant the duty of performing those things, the failure to perform which is alleged to have caused the injury. LeForest v. Tolman, 117 Mass. 109; Smith v. Condry, 1 How. 28; The China, 7 Wall. 53; Phillips v. Eyre, L. R. 4 Queen's Bench, 225; Wood v. Wood, 1 Blackf. 71; Wall v. Hoskins, 5 Ired. 177; Mahler v. Transportation Co., 35 N.Y. 352; Needham v. Railroad, 38 Vt. 295; Richardson v. Railroad, 98 Mass. 85; Willis v. Railroad, 48 Am. Rep. 301; Hyde v. Railroad, 61 Ia. 441; Davis v. Railroad, 143 Mass. 301; Wooden v. Railroad, 126 N.Y. 10; McCarthy v. Railroad, 18 Kan. 46; Railroad v. Moore, 29 Kan. 633. (5) Our courts will not take judicial notice of the statutes of Kansas; nor will they presume that the common law is in force in that state. Flato v. Mulhall, 72 Mo. 522; Sloan v. Torrey, 78 Mo. 622; Bain v. Arnold, 33 Mo.App. 631. (6) The plaintiff, as shown by his own evidence, was guilty of contributory negligence. Williams v. Railroad, 43 Iowa 396; Marsh v. Railroad, 56 Ga. 274. (7) Plaintiff's instruction number 1 should have been refused. It told the jury that it was the duty of the defendant to maintain its track so that plaintiff could use the same with safety. Railroad v. McCormack, 74 Ind. 440; Fuller v. Jewett, 80 N.Y. 46; Covington v. St. Louis, 89 Mo. 208; Siela v. Railroad, 82 Mo. 430; Railroad v. Smithson, 45 Mich. 219; Pittsburg etc., Co. v. Sentmeyer, 5 Am. and Eng. R. R. Cases, 513. (8) The trial court erred in refusing defendant's instructions numbers 9, 10, 11, 13, 15, 16 and 17. (9) The damages assessed were so excessive as to show that the verdict was the result of passion or prejudice. Sawyer v. Railroad, 37 Mo. 240; Adams v. Railroad, 100 Mo. 555; Gurley v. Railroad, 104 Mo. 211; Furnish v. Railroad, 102 Mo. 438; Collins v. Council Bluffs, 35 Iowa 432; Rose v. Railroad, 39 Iowa 256; Potter v. Railroad, 22 Wis. 586; Spicer v. Railroad, 29 Wis. 580; Railroad v. McKean, 40 Ill. 218; Railroad v. McAva, 52 Ill. 296; Railroad v. Henry, 62 Ill. 142; Chicago v. Martin, 49 Ill. 242; Decatur v. Fisher, 53 Ill. 407; Railroad v. Hand, 7 Kan. 380; Railroad v. Milliken, 8 Kan. 648; Railroad v. Young, 8 Kan. 659; Railroad v. Peavy, 29 Kan. 170. And the trial court erred in permitting plaintiff to remit part of the verdict. Gurley v. Railroad, 104 Mo. 233; Railroad v. Montgomery, 46 Kan. 120; Moffat v. Sackett, 18 N.Y. 522; Cassis v. Delaney, 38 N.Y. 178; Steinbuckle v. Wright, 43 Kan. 307; Railroad v. Cone, 37 Kan. 578.

F. W. Randolph and Beebe & Watson for respondent.

(1) The court properly refused to give defendant's instruction number 9, directing a verdict for defendant. That it was negligent for defendant to permit the hole or ditch to remain in its roadbed for so long a time prior to plaintiff's injury, can not be doubted. If it was necessary to have a ditch there to drain the water, it should have been boxed or covered, as was usually done. Lewis, Adm'r v. Railroad, 59 Mo. 495; Huhn v. Railroad, 92 Mo. 440; Hamilton v. Railroad, 18 S.W. 977; Hannah v. Railroad, 154 Mass. 532. (2) The question of plaintiff's alleged contributory negligence was properly submitted to the jury. Lewis v. Railroad, supra; Huhn v. Railroad, supra, and cases cited. (3) First. The fact that plaintiff was injured in Kansas in no way affects defendant's liability. It was part of the implied contract between plaintiff and defendant, that the latter should use reasonable care to provide a safe roadbed for his use, wherever he was sent to work, whether in or out of the state of Missouri. Gibson v. Railroad, 46 Mo. 163. Second. It is immaterial on this point whether the court will presume that the common law was in force in Kansas, at the time of plaintiff's injury, but if it were material it is plain the court will so presume. Territorial Laws, Mo., 436; State v. Clay, 100 Mo. 571; Benne v. Schnecko, 100 Mo. 250; Field v. Small, 102 Mo. 100. (4) Plaintiff's first instruction declared the law properly. The specific objection to it (amounting to mere verbal criticism) is met by the following cases: Keegan v. Cavanough, 62 Mo. 230; Blanton v. Dold, 18 S.W. 1149; Bohn v. Railroad, 17 S.W. 580; Hannah v. Railroad, 150 Mass. 532; McKee v. Railroad, 50 N.W. 209. (5) The court did not err in refusing defendant's instructions numbers 9, 10, 11, 13, 15, 16, 17. (6) The damages are not excessive. Porter v. Railroad, 71 Mo. 83; Waldhier v. Railroad, 87 Mo. 49; Griffith v. Railroad, 98 Mo. 168; Stephenson v. Railroad, 96 Mo. 215; Furnish v. Railroad, 102 Mo. 669; Dougherty v. Railroad, 97 Mo. 647; Herbert v. Railroad, 116 U.S. 646; Berg v. Railroad, 50 Wis. 419; Young v. Railroad, 19 Kan. 488; Nandau v. Lumber Co., 43 N.W. 1135; Railroad v. Moore, 31 Kan. 197; Railroad v. Lane, 15 S.W. 477; Bowers v. Railroad, 7 P. (Utah) 25; Pense v. Railroad, 44 N.W. 686; Railroad v. Mitchell, 87 Ky. 327; Railroad v. Dooley, 12 S.E. 923; Railroad v. Wilcot, 13 Ill.App. 490; Sprague v. Attee, 46 N.W. 756; Ehrman v. Railroad, 14 N.Y.S. 336. (7) The trial court had power to order a remittitur and having done so this court will not interfere with the discretion thus exercised. Loyd v. Railroad, 53 Mo. 509; R. S. 1889, sec. 2304; Sedgwick on Damages [6 Ed.], p. 765; Belknap v. Railroad, 49 N.H. 358; Doyle v. Dixon, 97 Mass. 208. (8) And, even if this court should be of the opinion that the trial court should have required a larger remission of damages, and that the action of the trial court in that respect is open for review, the cause should not be reversed, without first giving the plaintiff an opportunity further to remit. McCullough v. Ins. Co., 21 S.W. 207; Hahn v. Sweazea, 29 Mo. 199; Tilford v. Ramsey, 43 Mo. 420; Loyd v. Railroad, 53 Mo. 514; Cook v. Railroad, 63 Mo. 397; Johnson v. Morrow, 60 Mo. 340; Miller v. Hardin, 64 Mo. 545; Waldhier v. Railway, 87 Mo. 48; Smith v. Railroad, 92 Mo. 374; Keen v. Schnedler, 92 Mo. 527; Furnish v. Railroad, 102 Mo. 438; Railroad v. Herbert, 116 U.S. 644; Dwyer v. Railroad, 36 Kan. 58; Sneed v. Madison, 62 Wis. 137; Murray v. Railroad, 48 N.Y. 655; Belnap v. Railroad, 49 N.H. 358; Collins v. Council Bluffs, 35 Iowa 432; Pence v. Railroad, 44 N.W. 686; Doyle v. Dixon, 97 Mass. 208; Blunt v. Little, 3 Mason, 102; Kinsey v. Wallace, 36 Cal. 462; Mill Co. v. Gillham, 100 Ill. 55; Graham and Waterman on New Trials [2 Ed.], sec. 1162. Clapp v. Railroad, 19 Barb. 461; Sedgwick on Damages [6 Ed.], p. 765; 2 Thompson on Trials, sec. 2067; R. S. 1889, sec. 2304.

Burgess, J. Black, C. J. Brace, Macfarlane and Burgess, JJ., concur. Barclay, Gantt and Sherwood, JJ., dissent from what is said in this supplemental opinion.


[123 Mo. 226] In Banc

Burgess, J.

Action for damages for injuries resulting from alleged negligence on the part of the defendant, in permitting a ditch to be and remain in [123 Mo. 227] and across its track, by reason of which it was unsafe for persons engaged in switching cars, that being the kind of work in which plaintiff, as an employee of defendant, was engaged in at the time of the accident.

The answer denied all allegations in the petition, and pleaded contributory negligence on the part of the plaintiff. On the thirty-first day of August, 1887, the plaintiff, while in the service of defendant as a switchman, was endeavoring to make a coupling in its switch yards, in Wyandotte, Kansas, he stepped into a ditch which crossed defendant's roadbed, causing his left arm to be caught between the bumpers of the cars necessitating the amputation of his hand and a part of the forearm. The ditch was about ten inches wide, and twelve inches deep, and extended the entire width of the roadbed. It had been there for at least a year before the accident; looked like a ditch to drain off water.

Plaintiff, at the time of his injury, was working under one Wardell, who was foreman of his crew, and who ordered him to go down the track and couple some cars which were about to be pushed down to some cars that were stationary. They were then at work in defendant's switch yard, known as the "Cypress yards." "He went down to the stationary cars and set the coupling pin on the drawhead so that when the link on the moving car should be entered into the drawhead of the stationary car, the pin would drop in and make the coupling. Plaintiff entered between the cars when they came together to...

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