27 S.W. 644 (Mo. 1894), Browning v. Wabash Western Railway Company

Citation:27 S.W. 644, 124 Mo. 55
Opinion Judge:Barclay, J.
Party Name:Browning v. Wabash Western Railway Company, Appellant
Attorney:F. W. Lehmann and Geo. S. Grover for appellant. A. H. Waller for respondent.
Judge Panel:Barclay, J. Black, C. J., Brace, Gantt, Macfarlane and Sherwood, JJ., concur. Judge Burgess, having tried the cause as circuit judge, did not take part.
Case Date:July 09, 1894
Court:Supreme Court of Missouri
 
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Page 644

27 S.W. 644 (Mo. 1894)

124 Mo. 55

Browning

v.

Wabash Western Railway Company, Appellant

Supreme Court of Missouri

July 9, 1894

Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

F. W. Lehmann and Geo. S. Grover for appellant.

(1) The mere fact that the brake-staffs were removed from the nine cars of steel, did not make out a prima facie case of negligence against the defendant. Bowen v. Railroad, 95 Mo. 268; Tabler v. Railroad, 93 Mo. 79; Wood on Master and Servant [2 Ed.], sec. 346; p. 708; Randall v. Railroad, 109 U.S. 478; Railroad v. Hughes (Pa.), 33 Am. and Eng. Railroad Cases, 348. (2) The removal of the brakes from the nine cars of steel was not the proximate cause of the injury. Henry v. Railroad, 76 Mo. 288; Carter v. Towne, 103 Mass. 507; Lannen v. Gaslight Co., 44 N.Y. 459; Matthews v. Elevator Co., 59 Mo. 474; Mathiason v. Mayer, 90 Mo. 585; Moulton v. Sanford, 51 Me. 134; Sultan v. Wanwatosa, 29 Wis. 21. (3) The death of Browning was due to the negligence of Nolan, the fellow servant of Browning, that negligence, consisting of, first, his failure to note whether the cars were all coupled together before backing against them with his engine, and, second, his act of throwing the stub switch and thus letting the moving cars out upon the main track. Lewis v. Railroad, 54 Mich. 55; Wharton on Negligence, sec. 155. (4) The jury were not properly instructed as to the measure of damages, but were left at liberty to award such damages as they chose within the maximum fixed by law. Hawes v. Stock Yards Co., 103 Mo. 60; McGowan v. Ore & Steel Co., 109 Mo. 518. (5) The court gave improper instructions at the request of plaintiff, and refused proper instructions asked by defendant. See authorities cited under points 1 to 4.

A. H. Waller for respondent.

(1) Browning, deceased, was entitled to a clear and unobstructed track, and appellant owed him this duty, and if the cars that collided with Browning's engine got upon and obstructed the track by reason of the negligence of any agent or agents of appellant entrusted with the superintending control and management of said cars, and acting in the master's stead, appellant is liable therefor. Wilson v. Railroad, 15 Am. and Eng. Railroad Cases, 192; Railroad v. Welch, 52 Ill. 183; Fifield v. Railroad, 42 N.H. 225; Dorsey v. Company, 42 Wis. 583; Lewis v. Railroad, 59 Mo. 495. (2) The escaping of the cars loaded with steel and their flight down the grade and consequent collision with Browning's engine, were caused and occasioned by a series of negligent acts and omissions with refer-erence to the management of said cars which conjoined and concurred together to that end, viz: First. The removal of the brake-staffs by road master McGuigan, which rendered the cars unmanageable if put in motion whilst detached from the engine or other cars having brakes. Second. Road master McGuigan's act in ordering said loaded cars so without brakes, and therefore unmanageable, to be set in on the side track at Bridgeton, the tracks at said point being on a grade or incline, whereby they became a source of danger. Lilly v. Railroad, 14 N.E. 503. Third. The act of conductor Nolan in turning the switch after the cars were in motion and unmanageable and a disaster of some sort inevitable, whereby they were allowed to escape onto the passing track and from thence onto the main track. (3) The evidence shows that road master McGuigan had charge of the division of the road extending from St. Louis to Moberly, and of the work train and the crew thereof whilst employed as such, and of the laborers and their foreman who loaded the cars with steel and directed them in their work and movements; he was, therefore, a vice-principal and his acts were the acts of appellant. Hoke v. Railroad, 88 Mo. 360; Harrison v. Railroad, 41 Am. and Eng. Railroad Cases, 398. (4) Conductor Nolan had charge of his train and the cars that escaped, and was responsible for the safe and proper management of the same and for the performance of duty on the part of the men engaged with him and for the adjustment of the switches. In the discharge of these duties, he, too, was a vice-principal and his acts were the acts of appellant. Whitehead v. Railroad, 99 Mo. 271; McGowan, v. Railroad, 61 Mo. 528; Moore v. Railroad, 85 Mo. 588; Railroad v. Ross, 112 U.S. 377; Ayres v. Railroad, 33 Am. and Eng. Railroad Cases, 272; Moon v. Railroad, 17 Am. and Eng. Railroad Cases, 531; Railroad v. Laustrom, 21 Am. and Eng. Railroad Cases, 529. (5) Even though conductor Nolan be held to be a fellow servant, yet plaintiff, under the facts, is still entitled to recover, for the reason that Nolan's negligence at most merely concurred with the prior negligence of defendant's road master to cause the collision and Browning's death. In case the negligence of the master concurs with the negligence of a fellow servant to produce an injury, the plaintiff is, nevertheless, entitled to recover. 2 Thompson on Negligence, p. 981, and cases cited; McDermott v. Railroad, 87 Mo. 301; Young v. Iron Co. 103 Mo. 324; Crutchfield v. Railroad, 76 N.C. 320; Booth v. Railroad, 73 N.Y. 38; Paulmeier v. Railroad, 34 N. J. Law, 151. (6) Appellant's assignment of error, with reference to the giving and refusing of instructions other than the instruction on the measure of damages, is not entitled to consideration, for the reasons: First. That the court adopted, in the giving of instructions, the appellant's theory of the law. Appellant can not complain of error that it induced. Second. Because appellant's refused instructions did not correctly declare the law. Price v. Breckenridge, 92 Mo. 378; Holmes v. Braidwood, 82 Mo. 610; Harrington v. Sedalia, 98 Mo. 583. (7) Plaintiff's instruction on the measure of damages confined the jury to compensatory damages and was not misleading. If appellant regarded this instruction insufficient and misleading, as it now claims, it should have asked an instruction of the court defining the measure of damages according to its view of the law; not having done so, it can not complain now; it can not take advantage of its laches or intentional omission to ask for such instruction in the appellate court. Schultz v. Moon, 33 Mo.App. 343; Tetherow v. Railroad, 98 Mo. 86; LeMay v. Railroad, 105 Mo. 361; Railroad v. Clark, 74 Ala. 443. (8) Even if the giving of this instruction was technically an error, appellant was not prejudiced thereby, because: First. From a review of the entire record the verdict was unquestionably for the right party, and the damages awarded, to wit, $ 4,000, in view of the evidence, were reasonable. Evidently the jury were not misled nor was the appellant prejudiced by the...

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