Gardner v. St. Louis & San Francisco Railway Company

• Decision Date: 16 June 1896
• Citation: 36 S.W. 214,135 Mo. 90
• Parties: Gardner, Appellant, v. St. Louis & San Francisco Railway Company
• Court: Missouri Supreme Court

36 S.W. 214

135 Mo. 90

Gardner, Appellant, v. St. Louis & San Francisco Railway Company

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from Lawrence Circuit Court. -- Henry Brumback, Esq., Special Judge.

Affirmed.

John W Leake, Cloud & Davies, Joseph French, and W. B. Skinner for appellant.

(1) There was evidence tending to show that the insufficiency of the safety chains contributed to the accident, and that the purpose of said chains, in part, was to hold the engine and tender together in case of the breaking of the drawbar or kingbolt. And the question of the sufficiency of the safety chains should have been submitted to the jury, and the instruction asked by plaintiff covering that point should have been given, and that given by the court of its own motion did not present all the issues. It is well settled law, that instructions should be predicated on the whole testimony, and when they have a tendency to restrict the jury to isolated facts, to the exclusion of other facts which are before them in evidence, it is not only a misdirection, but an infringement on the province of the triers of the fact. Chappell v. Allen, 38 Mo. 213; Raysdon v Triumbo, 52 Mo. 35; Compton v. Baker, 34 Mo.App. 133. (2) The admission in evidence of the book purporting to be the mayor's docket from Garfield, was clearly error. The same was not properly authenticated, and if it had been, was not competent or proper to discredit the witness by evidence of violation of city ordinances, or of convictions for misdemeanors. State v. Taylor, 98 Mo. 240. (3) The testimony introduced by defendant to show how plaintiff's witnesses, Ford, Blancet, and Baxler were registered at the Hotel Porter, under fictitious names, by Mr. Leake, one of the attorneys, was clearly irrelevant and immaterial, and the refusal of the court to permit Mr. Leake to explain this circumstance, was also error. (4) The testimony offered by plaintiff, tending to prove, for the purpose of showing knowledge on the part of defendant, of the dangerous character of the machinery, that the use of the Consolidated engine had been abandoned by the defendant on that part of the road, and that they were not then in general use, should have been admitted. Crane v. Railroad, 87 Mo. 588. (5) Under the issues made in this case, not only specific defects of this particular engine complained of, was in issue, but the general defects of consolidated engines as a class, was also put in issue, and some testimony was admitted on this point. It was competent to have admitted testimony tending to prove that these general defects existed, and that defendant knew it, yet the court excluded all evidence of other engines of a different construction, used by defendant, in which such defects did not exist, and comparison therewith. This, too, after it had been proved by defendant's own witnesses that this engine had been constructed for defendant on a special order for such engines. Comparisons with other engines should have been permitted. Huhn v. Railroad, 92 Mo. 448; 1 Thompson on Neg., pp. 152-156; Spaulding v. Railroad, 30 Wis. 110; Railroad v. Pindar, 53 Ill. 447; Turnpike Co. v. Railroad, 54 Pa. St. 345; Anderson v. Co., 64 N.C. 399; Railroad v. Gilham, 39 Ill. 445; Longabaugh v. Railroad, 9 Nev. 271; Bevier v. Railroad, 13 Hun, 254; Hoyt v. Jeffers, 30 Mich. 181; Railroad v. Corn, 71 Ill. 493.

L. F. Parker for respondent.

(1) The court permitted no reversible error in permitting the docket of the justice of the peace to be read to the jury; and if the admission of that testimony was error, it was waived by the plaintiff by introducing evidence of like character with reference to a witness for the defendant. Nitchie v. Earle, 19 N.E. 749; Perkins v. Hayward, 24 N.E. 1033; State v. O'Brien, 46 N.W. 861; Reed v. New, 12 P. 139; Minton v. Lumber Co., 48 N.W. 857; Railroad v. Wiebe, 41 N.W. 297; Howell v. Graff, 41 N.W. 142. (2) The first instruction asked by the plaintiff was faulty, in that it ignored the question of reasonable care on the part of the defendant, as the measure of its duty, and an instruction with reference to the duty of the master to a servant, in respect of furnishing machinery and appliances, is faulty unless it includes the question of reasonable care as a measure of that duty. Railroad v. Javi, 3 C. C. A. 443; Gowen v. Harley, 6 C. C. A. 197; Railroad v. Linney, 7 C. C. A. 656. (3) These same authorities sustain the position taken by the court below, as shown by the modification of plaintiff's instruction, and the giving of the instruction by the court of its own motion.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

Action instituted in the circuit court of Barry county, for damages for personal injuries sustained by plaintiff, while in the employ of defendant in the capacity of fireman on one of its locomotives on its railroad. The venue was changed to the circuit court of Lawrence county, where a trial was had resulting in a verdict and judgment for defendant, and plaintiff appealed.

At the time of the accident plaintiff was standing upon the apron which covered the opening between the engine and tender, attending to his duties; they separated and he fell beneath the tender, which passed partially over him, bruising and injuring him on and about the head, body, shoulders, spine, and loins, permanently disabling him, and rendering him unable to work.

With respect to the negligence of defendant the petition alleges, "that said injuries were caused by the carelessness and negligence of defendant company, its agents and servants, in failing and neglecting to keep its roadbed properly ballasted, tied, lined, and leveled, and by allowing and permitting the ends of the rails on said railway where the same connected to get out of level, by reason of which at the point of connection one rail would stand several inches higher than the other, thereby jolting and jerking the engines and trains moving on said road when they would strike said joint so elevated above the level of the connecting rail and tearing the coupling, which united said cars, apart. And also by the negligence and carelessness of the defendant company, its agents and servants, in using insufficient safety chains and eye bolts to connect said chains to engine and tender and insufficient drawbar and kingbolts to connect said engine, upon which plaintiff was firing, with the tender thereof, which drawbolt had upon the kingbolts passing through the same too much play by several inches, thereby weakening said kingbolts and coupling and making it more liable to break."

The answer was a general denial.

The separation of the tender from the engine was caused by the breaking in two of the kingbolt, which fastened the coupling between them. The evidence was conflicting as to whether this bolt was cracked before the accident, and by reason thereof defective, or whether it was in perfect condition. The evidence was also conflicting as to the condition of the track at the place of the accident, plaintiff's witnesses testifying that it was in very bad condition, while defendant's witnesses testified to the contrary. The safety chains also parted and there was some evidence tending to show that they were insufficient.

Plaintiff asked the court to instruct the jury as follows:

"It was the duty of the defendant to furnish and supply to its employees, or those engaged in running and operating its train of cars, machinery and appliances, such as locomotive engines and tenders, and the various appliances thereto belonging, that were reasonably safe, secure and sufficient for the transaction of its business, and that it was the duty of defendant to keep its track in a reasonably safe condition for the passage of its trains, at the point where the accident in evidence occurred, and in the absence of notice to the contrary, the employees of defendant had the right to assume that the locomotive engines and tenders and appliances furnished to them with which to work were so safe, secure and sufficient and that said track was in a reasonably safe condition.

"If you find, therefore, that defendant neglected its duty as above defined, and that on the day specified in the petition plaintiff, Robert A. Gardner, was in the employ of defendant as a fireman, and was at said time engaged in the prudent and careful discharge of his duties under such employment, and that there was a defective or insufficient or cracked coupling pin or kingbolt in the engine through the drawbar connecting the engine and tender on which he was working, or that the drawbar or safety chains or coupling apparatus of said engine and tender were defective or insufficient and not reasonably safe, or if the track at the point where the accident occurred was not in a reasonably safe condition, or if the track was so rough or the joints so uneven or the ties broken or rotten or the...