Dickson v. Omaha & St. Louis Railroad Company

• Decision Date: 09 July 1894
• Parties: Dickson v. Omaha & St. Louis Railroad Company, Appellant
• Court: Missouri Supreme Court

27 S.W. 476

124 Mo. 140

Dickson v. Omaha & St. Louis Railroad Company, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Affirmed.

Theodore Sheldon and E. E. Aleshire for appellant.

(1) The petition does not state a cause of action and the court erred in overruling defendant's objection to the introduction of any evidence by the plaintiff, because, as against its employees, defendant was under no duty to fence its road. R S., sec. 2611; Rorer on Railroads, ch. 25, sec. 1; 1 Thompson on Negligence, 517; 2 Shearman & Redfield on Neg. [4 Ed.] sec. 447; Redfield on Railways, ch. 19, sec. 12; Pierce on Railroads, 409; Langlois v. Railroad, 19 Barb, 364; Railroad v. Brown, 5 Brad. (Ill.) 590; Dewey v Railroad, 31 Iowa 374; Patton v. Railroad, 73 Iowa 306; Carpenter v. Railroad, 25 Mo.App. 111; Berry v. Railroad, 65 Mo. 172; Harrington v. Railroad, 71 Mo. 384; Johnson v. Railroad, 80 Mo. 620; Peddicord v. Railroad, 85 Mo. 160; Donnegan v. Erhardt, 119 N.Y. 428. (2) The failure to fence and the collision with the bull were the remote and not the direct causes of Dickson's death. Its direct and immediate cause was his approaching the switch without having his train under control. Beach on Contributory Neg. [2 Ed.], sec. 373; Francis v. Railroad, 110 Mo. 387. (3) Dickson's own negligence, in not observing the switch but remaining upon the steam chest of the engine until the switch was reached, prevents recovery. (4) The court erred in instructions given for plaintiff, and in modifying and refusing instructions asked by defendant. See above cited authorities; McKee v. Railroad, 83 Iowa 616; Huhn v. Railroad, 92 Mo. 440; Alcorn v. Railroad, 108 Mo. 81.

Alexander H. Waller for respondent.

(1) First. Plaintiff's petition states a good cause of action. The Missouri statute is mandatory and enjoins upon railroad companies the positive duty of fencing their tracks with lawful fences and maintaining the same and was designed for the protection of persons, including employees operating trains, as as well as animals. R. S. 1889, sec. 2611; Isabel v. Railroad, 60 Mo. 484; Donnegan v. Erhardt, 119 N.Y. 472; Magee v. Railroad, 78 Cal. 432; Blair v. Railroad, 20 Wis. 257; Stuettgen v. Railroad, 80 Wis. 499; Keyser v. Railroad, 56 Mich. 559; S. C., 66 Mich. 361; Sherman's Adm'r v. Anderson, 27 Kan. 333; Fordyce v. Jackson, 56 Ark. 597; Walkenhauer v. Railroad, 17 F. 136. Second. Any failure or neglect to comply with the positive requirements of any statute or municipal regulation enacted for the purpose of protecting life and limb is negligence per se. Schlereth v. Railroad, 96 Mo. 515; Eswin v. Railroad, 96 Mo. 294; Crumpley v. Railroad, 98 Mo. 38; Wood's law of Master and Servant, sec. 397, p. 789. (2) The immediate cause of Dickson's death was the wreck of his engine at the switch. The promoting cause in the chain of causation, leading directly and proximately to the wreck and Dickson's death, was defendant's negligence with respect to its fence which permitted the bull to get onto and obstruct track and derail the engine. What followed were but the consequences of this negligent act, flowing naturally and directly therefrom. Beach on Cont. Neg. [1 Ed.], pp. 32, 33. (3) First. There was no proof of negligence on Dickson's part. This question was submitted to, and decided by, the jury, however, against appellant. Barry v. Railroad, 98 Mo. 70; Wilkins v. Railroad, 101 Mo. 106. Second. When a person finds himself suddenly exposed to great danger and does what he thinks best for his safety, he is not guilty of negligence, though he may not have acted wisely. Hass v. Railroad, 57 N.W. 896; Adams v. Railroad, 74 Mo. 560; Siegrist v. Arnot, 86 Mo. 208. (4) The court did not err in refusing appellant's ninth instruction for the reason: First. The substance of this instruction is that if the defect in the fence "was known to Dickson as well as to the company there can be no recovery in the case, unless, etc. This is not the law. The master and servant in cases like thido not stand on equal footing, and not only must the servant have knowledge of the defect, but of the danger also. Waldhier v. Railroad, 87 Mo. 46; Magee v. Railroad, 78 Cal. 432. Second. There were no evidence direct or circumstantial tending to show that Dickson had any knowledge whatever of the defect in the fence or the danger arising therefrom. Instructions must be predicated on the evidence. Rodney v. McLaughlin, 97 Mo. 431; Stone v. Hunt, 114 Mo. 74; Bean v. Railroad, 107 N.C. 745. Third. The evidence showed that Dickson had been running over that part of appellant's road several months, averaging a round trip every ten days. There was no other testimony whatever from which the jury might infer notice on his part of the defect in the fence. From the face of the entire record the verdict was for the right party, and, had the instruction in question been given, the verdict could not have been different. Hence appellant was not prejudiced by the court's action. Fortune v. Fife, 105 Mo. 433; Hanniford v. City of Kansas, 103 Mo. 182; Fitzgerald v. Barker, 96 Mo. 661.

OPINION

Macfarlane, J.

This action is brought by Lena Dickson, widow of James Dickson, deceased, against the Omaha and St. Louis Railway Company, to recover the sum of $ 5,000, for alleged negligence of the railway company, resulting in the death of Dickson, near Evona, Missouri, on May 16, 1891.

The petition avers that on that day deceased was in the employ of defendant as locomotive engineer and was operating one of its locomotives attached to a freight train. While so operating said engine a collision occurred with a bull, which had strayed upon the track through a defective fence, by reason of which collision the engine was thrown from the track and overturned, thereby killing Dickson; that the bull got upon the track and the accident occurred at a point where the law required the defendant to erect and maintain the fence; that defendant was negligent in that, although it was required by law to maintain said fence, it failed to do so, and by reason of said negligence plaintiff's husband was killed and she prayed damages as above.

To the petition the defendant entered a general denial, which it supplemented with the allegations that if the fence was defective Dickson knew of such defect; that at the time of the accident Dickson was violating the rules of the company in running his engine at a high, forbidden and dangerous speed; that the injury was not due to the collision with the bull, but was caused by striking a three-throw switch at great distance from the point where the collision occurred, and that, after the collision with the bull, Dickson might have avoided all injury by the exercise of ordinary care.

The testimony offered tended to show that on the morning of May 16, 1891, Dickson, then operating one of defendant's trains as engineer, was approaching the station Evona, going east. When the engine was about nine hundred and fifty feet west of the west switch, and moving at from fifteen to twenty miles an hour, it collided with a bull which had strayed upon the track through a defect in the railroad fence along the right of way. The bull was carried on the cowcatcher about one hundred feet and then rolled on the track in front of the engine. The only effect of the collision was to derail the front pair of small wheels under the engine. These kept on the ties close to the rails. All the rest of the train kept the track for eight hundred and fifty feet and until the west switch was reached. After colliding with the animal, Dickson reversed his engine and applied an air brake, with which the engine was fitted. He then climbed through the window of his cab out onto the running board of the engine, and, after walking its length, stepped down upon the steam chest and there stood until the west switch was reached. The engine, when it reached this switch, was running about twelve miles an hour. Upon striking the switch, with its front small wheels derailed, the engine was thrown over, and Dickson, who was then standing upon the steam chest, was also thrown to the ground and crushed to death by some part of the engine or tender. The fireman jumped off within sixty or seventy feet from the place where the bull was struck. When last seen, Dickson was leaning over watching the derailed wheel under him, which was moving over the ties. After the application of the air brake on the engine, the train began to slow up, until its speed at the switch was reduced to about twelve miles an hour.

One of the rules of defendant was as follows:

"Freight trains must be under control when approaching and passing through the stations, and be prepared to stop in case the track is obstructed."

At the conclusion of the testimony, defendant unsuccessfully demurred to the evidence.

Any other necessary facts will sufficiently appear in the opinion. The case was submitted to the jury upon instructions given by the court, which need not be set out here. Some instructions asked by defendant were refused. They will be sufficiently noticed in the opinion. The judgment was for plaintiff for $ 5,000 and defendant appealed.

I. The only negligence charged as ground for recovery is the failure on the part of defendant to observe the statutory requirement to so keep its fence in repair as to prevent cattle from straying on its railroad. Defendant insists that the statute requiring railroad companies to make and maintain fences on the sides of their roads is designed solely to prevent injuries to the domestic animals of adjacent landowners, and does not create a duty from defendant to its employees.

The duty of a master to his servant requires the exercise...