28 S.W. 887 (Mo. 1895), Rodney v. St. Louis Southwestern Railway Company

Citation:28 S.W. 887, 127 Mo. 676
Opinion Judge:Brace, P. J. Per Curiam.
Party Name:Rodney v. St. Louis Southwestern Railway Company, Appellant
Attorney:Sam. H. West and W. H. Miller for appellant. Wilson & Moore and Wilson Cramer for respondent.
Judge Panel:Brace, P. J. Black, C. J., and Macfarlane, J., concurring, Barclay, J., in the opinion, except paragraph 4 and the result, to which he dissents (Division One). In the fourth paragraph, Brace, C. J., and Macfarlane and Burgess, JJ., only, concur; Barclay, Gantt, Sherwood and Robinson, JJ., being o...
Case Date:March 19, 1895
Court:Supreme Court of Missouri

Page 887

28 S.W. 887 (Mo. 1895)

127 Mo. 676

Rodney

v.

St. Louis Southwestern Railway Company, Appellant

Supreme Court of Missouri, First Division

March 19, 1895

Appeal from Mississippi Circuit Court. -- Hon. H. C. O'Bryan, Judge.

Affirmed.

Sam. H. West and W. H. Miller for appellant.

(1) The instructions given to the jury by the court (on its own motion) as to the obligation of the defendant to the plaintiff as from a master to his servant are erroneous. It was only the duty of the defendant to exercise ordinary care to provide cars that were reasonably safe. These instructions made the defendant the insurer of their safety. Gutridge v. Railroad, 105 Mo. 520; Browning v. Railroad, 27 S.W. 644; Corey v. Railroad, 86 Mo. 635; Hamilton v. Mining Co., 108 Mo. 364; Railroad v. Davis, 23 S.W. 306; Wonder v. Railroad, 32 Md. 411; Railroad v. Bell, 12 S.W. 321; Hudson v. Railroad, 41 Am. & Eng. Railroad Cases (N. Car.), 348; Railroad v. Snyder, 14 S.Ct. 756; Railroad v. Duffey, 35 Ark. 602; Cooley on Torts, 557; Bailey, Mas. Liability to Servant, p. 94; Wood, Master and Servant, secs. 320, p. 684; Leonard v. Collins, 70 N.Y. 90; McKinney on Fellow Servant, sec. 24. (2) The court erred in its instructions to the jury by taking from the jury the question of negligence. Negligence is a question of fact for the jury to pass upon. It was a question of fact for the jury to determine as to whether the defendant was negligent, the evidence being conflicting. Gutridge v. Railroad, 105 Mo. 520; Wood on Master and Servant, sec. 345, p. 706; Barry v. Railroad, 98 Mo. 62; 2 Thompson on Trials, sec. 1664, et seq. (3) The instructions given by the court are misleading and not responsive to the issues as made by the pleadings and the evidence. Authorities under point 1. (4) The court erred in refusing instructions requested by the defendant. Gessley v. Railroad, 26 Mo.App. 156; McMurray v. Martin, 26 Mo.App. 437; Doan v. Railroad, 38 Mo.App. 408; McDonald v. Railroad, 32 Mo.App. 70; Stocker v. Green, 94 Mo. 280. First. There was evidence tending to show that the car was inspected and carded or marked signifying its defective condition by defendants car inspector who ordered it taken out of train and placed on the repair track by a switch foreman. If such switch foreman placed the car with others and did not place on the proper track, such acts were the direct cause of the injury to plaintiff. The switch foremen, of whom plaintiff was one, worked under one and the same common directing superior, the yardmaster, and in the same department of service of the same master and hence are fellow servants and the defendant would not be liable to plaintiff for his injuries. Foster v. Railroad, 21 S.W. 216; Relyea v. Railroad, 112 Mo. 86; Murray v. Railroad, 98 Mo. 573. Second. It is the province of the jury to determine and find, under proper directions from the court whether the relation of fellow servants existed. The question should have been submitted to the jury. (5) The instructions given by the court on the measure of damages are improper, vague, indefinite and uncertain. Hawes v. Stock Yards Co., 103 Mo. 60; Wilburn v. Railroad, 36 Mo.App. 203; Murray v. Railroad, 101 Mo. 236; Stephens v. Railroad, 96 Mo. 207; Britton v. Railroad, 51 N.W. 276; Railroad v. Stone, 49 F. 209; Railroad v. Thornsberry, 17 S.W. 521; 2 Thompson on Trials, p. 1472; Matney v. Grain Co., 19 Mo.App. 107. (6) The court erred in refusing and excluding testimony offered by the defendant which was competent, relevant and material. Haynes v. Christian, 30 Mo.App. 198. (7) The damages awarded by the jury are excessive and show that the jury were either actuated by malice, bias or a misconception of the measure of damages. Dougherty v. Railroad, 97 Mo. 166; Griffith v. Railroad, 98 Mo. 166; Adams v. Railroad, 100 Mo. 155.

Wilson & Moore and Wilson Cramer for respondent.

(1) The proximate cause of the injury to plaintiff was the defective condition of the coupling appliance of the Bellville car. Shear. & Redf. on Neg. [3 Ed.], p. 10, sec. 10; Banks v. Railroad, 40 Mo.App. 458; Parsons v. Railroad, 94 Mo. 286. (2) The petition sets out specifically the nature of the defect, and the answer "admits that the car mentioned in plaintiff's petition was in bad order and in a dangerous condition, but avers that defendant had so discovered it to be on the seventeenth day of December, 1891." This is a direct admission of the defect alleged in the petition. (3) Besides this admission there is the testimony of the car inspector, James J. Carey, who swears that on the night of the seventeenth, or morning of the eighteenth of December, he examined the car and found the back follow-plate broken. Notice to the car inspector was notice to defendant. Dutzi v. Geisel, 23 Mo.App. 676; Porter v. Railroad, 71 Mo. 66; Covey v. Railroad, 86 Mo. 635. (4) The negligence of the car inspectors was the negligence of defendant. Car inspectors and trainmen are not fellow-servants. Harper v. Railroad, 47 Mo. 567; Brothers v. Carter, 52 Mo. 372; Long v. Railroad, 65 Mo. 225; Carter v. Railroad, 78 Mo. 567. (5) It was the duty of the defendant to know the condition of the car on each succeeding day it was used, after acquiring knowledge of its defective condition. Parsons v. Railroad, 94 Mo. 286; 29 A. 380. (6) The fact that the car was a foreign one does not change the rule. The duty of inspection is the same. Gutridge v. Railroad, 94 Mo. 468; Railroad v. Williams, 24 S.W. (Ky.), 1. (7) The condition of the Bellville car was such as directly and necessarily to imperil the life of every brakeman who undertook to couple or uncouple it, and, though defendant had actual knowledge thereof, it made no effort to repair the car before loading it with cotton. Plaintiff had no notice of the defect; it was defendant's duty to warn him of the danger. Dowling v. Allen & Co., 74 Mo. 13; King v. Railroad, 8 Am. & Eng. R. R. Cases, 119; 11 Am. & Eng. R. R. Cases, 193. (8) Plaintiff had no notice of the defective condition of the drawbar of the Bellville car, and, in the absence of such knowledge, had the right to assume that it was in proper order. Porter v. Railroad, 71 Mo. 66; S. C., 60 Mo. 160; Condon v. Railroad, 78 Mo. 567; Dillingham v. Heardin, 26 S.W. --; Gutridge v. Railroad, 105 Mo. 520. (9) It is the duty of the master to furnish his servant with safe and suitable machinery and to keep the same in repair. Coontz v. Railroad, 26 S.W. 661. (10) This duty is a personal duty, which the master can not delegate to another so as to escape liability for injuries resulting from defective machinery. Coontz v. Railroad, 26 S.W. 661. (11) Defendant sets up that the car in question was placed upon the track where plaintiff found it by some fellow-servant of plaintiff, in violation of a rule of the company. If this was the act of a fellow-servant, it was not the cause of the injury -- the direct cause was the defective drawbar. A servant may recover for an injury caused by the combined negligence of master and a fellow-servant. Thompson on Neg., p. 981; Young v. Iron Co., 103 Mo. 324; Bluedorn v. Railroad, 108 Mo. 439. (12) The instruction given by the court on the measure of damages is supported by the decisions of this court. Whalen v. Railroad, 60 Mo. 323; Porter v. Railroad, 71 Mo. 66; Buck v. Railroad, 108 Mo. 179. (13) The verdict is not excessive.

Brace, P. J. Black, C. J., and Macfarlane, J., concurring, Barclay, J., in the opinion, except paragraph 4 and the result, to which he dissents (Division One). In the fourth paragraph, Brace, C. J., and Macfarlane and Burgess, JJ., only, concur; Barclay, Gantt, Sherwood and Robinson, JJ., being of the opinion that this court has no power to require a remittitur as a condition of affirmance in this class of cases. Sherwood, J., who dissents (In Banc).

OPINION

Page 888

[127 Mo. 682] In Banc.

Brace, P. J.

This is an action for personal injuries sustained by the plaintiff while engaged as switchforeman in the service of the defendant in its yards at Bird's Point, in which plaintiff obtained a judgment for $ 12,500, and the defendant appeals.

The gravamen of the plaintiff's cause of action, charged in the petition, is: that on the twenty-first day of December, 1891, there was stored on the side tracks in said yards a certain car loaded with cotton; that it was plaintiff's duty, in conjunction with others managing the switch engine, to place said car into a train for forwarding to its destination, and in so doing it was his duty to uncouple said car from others to which it was attached and in order to perform this duty it became necessary that the engine should back up the train "and give him the slack" so that the coupling [127 Mo. 683] pin could be removed; that while engaged in the performance of such duty, after giving the signal to back up, the plaintiff stepped between the cars as the engine eased up the slack and endeavored to draw the coupling pin with his left hand, when the drawhead of the car gave way and was forced back under the car to which it belonged, thereby allowing the projecting timbers, known as the deadwoods, on the end of said cars to come together, catching and fracturing the left arm of plaintiff, breaking, crushing and mangling the arm between the shoulder and the elbow; that at the time said injury was inflicted upon the plaintiff said car was not in good condition, but was defective in that it was not provided with the necessary and usual accompaniments of follow-plates and springs, which hold the drawhead in place during a concussion and prevent the same from being forced back under the car and the deadwoods from coming together; that said defect...

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