Beasley v. Linehan Transfer Company

• Decision Date: 07 March 1899
• Citation: 50 S.W. 87,148 Mo. 413
• Parties: Beasley v. Linehan Transfer Company, Appellant
• Court: Missouri Supreme Court

50 S.W. 87

148 Mo. 413

Beasley v. Linehan Transfer Company, Appellant

Supreme Court of Missouri, First Division

March 7, 1899

Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.

Reversed.

Seneca N. Taylor, Chas. Erd and Seneca C. Taylor for appellant.

(1) Judgment should be reversed because the evidence conclusively shows, without contradiction, that the proximate cause of the death of plaintiff's husband was occasioned by the negligence of the railway company; that no negligent act of this defendant was the proximate cause of his death. The law is firmly settled that where the act of negligence complained of as causing the injury is at most but the remote occasion of the injury, and that a subsequent act of negligence, by a responsible person intervening, was the immediate and proximate cause of the injury, there can be no recovery. Keown v. Railroad, 141 Mo. 86; Thompson v Railroad, 140 Mo. 138; Stanley v. Railroad, 114 Mo. 606; Burger v. Railroad, 112 Mo. 245; Hudson v. Railroad, 101 Mo. 14; Steep v. Railroad, 85 Mo. 229; Powell v. Railroad, 76 Mo. 80; Henry v Railroad, 76 Mo. 293; Stillson v. Railroad, 67 Mo. 671; Walsh v. Transportation Co., 52 Mo. 434; Reed v. Railroad, 50 Mo.App. 505; Railroad v. Kellog, 94 U.S. 469. (2) Instruction number 1 directed the jury to render a verdict in favor of plaintiff for $ 5,000 if they believed that the proper position of the transfer boat to occupy when receiving cars was such that the track on the boat should be in line with the track on the incline, so as to form a straight track; but that, at the time of the accident, the boat had not been put by defendant in proper position, but had been carelessly and negligently so placed that the track on the boat was not in line with the track on the incline, but formed an angle thereto; and, that this was the cause of the accident to the boilers and the scalding of Beasley. Thus, all the defenses pleaded and abundantly proven were absolutely ignored. Where there is any evidence tending to support a defense, the ignoring of it in the instructions given, is palpable error. Berger v. Railroad, 112 Mo. 239; Spillane v. Railroad, 111 Mo. 555; Wolff v. Campbell, 110 Mo. 114; Frank v. St. Louis, 110 Mo. 516; Alcorn v. Railroad, 108 Mo. 81; Gutridge v. Railroad, 105 Mo. 520; Roddy v. Railroad, 104 Mo. 234; Schroeder v. Mitchell, 98 Mo. 43; Rear v. Parker, 85 Mo. 107. (3) Where the risk is perfectly obvious to the sense of any man, whether servant or master, the servant assumes the risk. Keighan v. Cavanaugh, 62 Mo. 230; Aldridge v. Furnace Co., 78 Mo. 559; Renfro v. Railroad, 86 Mo. 302; Roddy v. Railroad, 104 Mo. 234; Jackson v. Railroad, 104 Mo. 448; Alcorn v. Railroad, 108 Mo. 81; Fugler v. Bothe, 117 Mo. 475; Lucy v. Oil Co., 129 Mo. 32; Nugent v. Kauffman Milling Co., 131 Mo. 241; Holloran v. Union Iron Foundry, 133 Mo. 470; Winkler v. Basket & Box Co., 137 Mo. 394; Thompson v. Railroad, 140 Mo. 138.

Wilson Cramer for respondent.

(1) The proximate cause of Beasley's death was the displacement of the boilers and the consequent breaking of certain pipes which allowed steam and hot water to escape and scald him to death. (2) There can be no doubt that, if the boat had been placed with its track in direct line with the incline track, the car, with the momentum attained by the time it reached the boat, would have gone through from stem to stern, even if derailed, without striking the boilers, which were twenty-five or thirty feet from the bow and twenty-two feet long. (3) It was the duty of the pilot, who was also captain, to see that the boat was in proper position to receive cars. (4) Beasley, the engineer, had the right to rely upon the captain, and to assume that the boat was in proper position when he received the signal from the pilothouse to come ahead on his engine. Shearman & Redfield on Neg. (3 Ed.) sec. 31. (5) By instruction number 1, given on behalf of plaintiff, the court submitted to the jury the questions whether the boat was in proper position to receive cars, and, if not, whether the failure to so place it was the cause of the accident to the boilers. (6) But one affirmative defense is set up in the answer, the one contained in the third count, to the effect that Beasley was notified that the car had broken loose and was coming down the incline with great velocity and momentum, in ample time to escape all injury, and knew the danger, but gave it no heed and so was guilty of contributory negligence. There was no evidence even tending to support this plea. (7) There is no allegation in the answer attributing the death of Beasley to any act or omission of the railway company. (8) Nor, if pleaded and shown, would the negligence of the railway company have constituted a defense to this action. Defendant, being itself at fault, can not set up the negligence of the railway company to defeat plaintiff's recovery. Shearman and Redfield on Neg., sec. 31; Becke v. Railroad, 102 Mo. 544; Dickson v. Railroad, 104 Mo. 504; Clark v. Railroad, 127 Mo. 213; Benjamin v. Railroad, 133 Mo. 274; Taylor v. Railroad, 137 Mo. 369. (9) The objections urged by appellants that instruction number 1, on behalf of plaintiff, ignores the plea of contributory negligence, set up in the third count of the answer, is not well taken. This plea was a matter of affirmative defense, which defendant should have asked the court to submit to the jury by an instruction. Having failed to do so, it can not now complain. In the absence of a request, the court is not required to instruct in civil cases. Railroad v. Town Site Co., 103 Mo. 468; Coleman v. Drane, 116 Mo. 394; Nolan v. Johns, 126 Mo. 166.

VALLIANT, J. Marshall, J., absent.

OPINION

VALLIANT, J.

This is a suit for damages for the death of plaintiff's husband which she alleges was caused by defendant's negligence. Petition states substantially that defendant was a corporation owning a steamboat, and engaged in transferring freight cars for the St. Louis, Cape Girardeau & Fort Smith Railroad Company, across the Mississippi, from Cape Girardeau to a point opposite on the Illinois shore; that plaintiff's husband was in the employ of defendant as engineer of the steamboat, and on October 20, 1892, was at his post when a car which was being delivered by the railroad company to the boat to be transferred, broke loose from the train, ran with great force on the boat, struck the boilers, caused them to explode and he was scalded to death; that the mode of delivering cars on the boat from the railroad, was over an inclined track, down a steep grade to the water's edge, where, by means of a movable track called a cradle, connection was made with a track laid on the deck of the boat from bow to stern; that over this route the custom was to back the cars in trains of two, three or four each; that those railroad tracks were out of repair and in such bad condition that the coupling pins which linked the cars in train were liable to be worked out of place, and the cars to become disconnected and run down the track, "wild and uncontrolled, with great force and momentum," upon the boat, and to produce a catastrophe like that above described; that the liability to danger which this condition of the railroad track caused, could have been obviated by placing guards of heavy timbers and great thickness alongside the track on the boat to catch the wheels of the cars that might run uncontrolled upon it; that such guards were practicable and usual on such boats, and could have been furnished at reasonable expense, and the liability to the danger might also have been reduced by means of a proper adjustment of the boat in the river with shore lines and guys, whereby the track on the boat could be held in perfect line with those on the incline and cradle, so that when cars should break loose from the train and "coming down wild and uncontrolled upon the boat would pass through from stem to stern and overboard without running against the boilers and steam pipes,"...