Walsh v. Mississippi Valley Transp. Co.

Decision Date31 March 1873
PartiesPATRICK WALSH, Respondent, v. MISSISSIPPI VALLEY TRANSPORTATION COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

Hitchcock, Lubke & Player, for Appellant.

I. This was a clear case of positive and direct negligence on

the part of the plaintiff. He has no right to assume that the hatch was closed, he not being upon a highway, and he was bound to use extraordinary care while he was walking in the dark. (Boland vs. Missouri Railroad Company, 36 Mo., 484; Callahan vs. Warne, 40 Mo., 131.)

Negligence is still a question of law. (Devitt vs. Pacific Railroad, 50 Mo., 302.)

The court was bound to say that the facts shown by plaintiff constituted negligence, and that therefore he could not recover.

II. The court below clearly and positively erred in giving plaintiff's instruction as to the custom or usage established by defendant.

a. This instruction was erroneous in that it required the jury to find that plaintiff had personal knowledge of this usage, that is, it required the jury to find that plaintiff had been shown to have actual knowledge of it, and prevented the jury from finding constructive notice.

b. Defendant did not plead or attempt to prove a general custom such as is supposed to enter into and form part of a contract. Defendant did establish a proper and usual mode of dealing which the jury were at liberty to consider as an element in the question of negligence. Hence this part of the instruction was misleading and comes within the opinion of this court in Buel vs. St. Louis Transfer Company, 45 Mo., 562.

III. The court below erred in giving plaintiffs instructions concerning negligence.

a. The facts of the case did not warrant the statement of fact made in this instruction that plaintiff's negligence remotely contributed to the injury; there was no evidence warranting this comment by the court. At best this part of this instruction was but a hypothetical statement of a proposition of law for which there was no evidence in the case. This should not be done, and if done is error. (kennedy vs. North Missouri Railroad Company, 36 Mo., 365.)

b. The use of the word “remotely” was wholly improper, and although its use was recommended in the case of Morrissey vs. Wiggins Ferry Company in 43 Mo., the use of similar language (the phrase “undue carelessness”) was held to be error in a late case--that of Buel vs. St. Louis Transfer Company, 45 Mo., 562.

IV. The case of Morrissey vs. Wiggins Ferry Company, 43 Mo., 380, is the case of a common carrier of passengers, and the person injured was a passenger, and the court held (see p. 383) that “the degree of responsibility to which carriers of passengers are subjected, is not ordinary care merely, which will make them liable only for ordinary neglect, but extraordinary care which renders them liable for slight neglect,” and therefore authorized an instruction which threw the consequence of slight neglect upon the carriers. The case at bar was not the case of a carrier of passengers, and the plaintiff was not a passenger. The rules as to negligence applicable to cases of passenger carriers have no application here. In the case at bar the plaintiff was an employee, and his personal safety was not in the hands of the defendant so that the defendant could be held liable for slight neglect. The burden was upon him to show that through no fault of his, but through and by the carelessness of defendant's servants, he was injured. The court should have stated that defendant was liable only for ordinary neglect, and that defendant was not liable at all, if plaintiff by the exercise of reasonable care and caution would have avoided the accident. (Shearm & Red. on Negl., 27, § 24.)

J. T. Tatum and W. H. Horner, for Respondent.

I. The law of this State is firmly established that in actions for damages arising from negligence, it should be left to the jury to say whether, notwithstanding the imprudence or neglect of the injured person, the defendant could not, in the exercise of reasonable care and diligence, have prevented the injury. There is no difference in law between negligence and gross negligence. (McPheeters vs. Hannibal & St. Joseph R. R., 45 Mo. 22; O'Flaherty vs. Union Railway Company, 45 Mo. 70)

II. If the plaintiff's neglect was slight or remote, and if the conduct of defendant's agents was the immediate and direct cause of the injury, and if with the exercise of prudence and the use of proper appliances on their part, the result might have been prevented, the defendant is not excused.

Carelessness of the plaintiff was not the proximate cause of the injury. (Fitch vs. Pacific Railroad Company, 45 Mo. 322.)

Contributory negligence will not excuse. ( Id. See also Buel vs. St. Louis Transfer Co., 45 Mo., 562, and cases there cited; Morrissey vs. Wiggins Ferry Company, 43 Mo., 380, 384; Brown v. Hannibal & St. Joe Railroad Company, 50 Mo., 461.)

III. The instruction as to custom, refused, is erroneous as it leaves out of view what the defendant should have done, knowing the men were to work before daylight next day.

The law as to custom was properly laid down in the first instruction for the plaintiff.

WAGNER, Judge, delivered the opinion of the court.

The defendant, on one of its barges, brought to the port of St. Louis a cargo of salt consigned to Bogy & Co. The salt was in bulk, and the consignees employed the plaintiff and others to sack and unload the same. Defendant commenced loading hay on the barge before all the salt was removed, and being anxious to have the barge unloaded as speedily as possible, in order that it might be used for the purpose of taking on the remainder of the hay, requested the workmen to work late at night and resume their labors early in the morning. In the afternoon at about five o'clock preceding the accident to the plaintiff, the defendant's superintendent ordered the hatchway on the fore part of the barge to be uncovered for the purpose of ventilation. The hatchway was left open the whole night. Plaintiff returned that evening and worked till about nine o'clock. In the morning he again returned and commenced his work before daylight, and in going across the barge fell through the open hatchway into the hold of the boat and received the injuries for which this suit was brought.

There was no light or any other guard placed around the apperture to warn him of his danger. The verdict and judgment were for the plaintiff.

The record contains no evidence to show that plaintiff had personal knowlege of the hatchway being left open, and he swears positively that he had none. But it was sought to show that there was a custom with the defendant to uncover the hatch way to ventilate the boats, and that the plaintiff must have had knowledge of that fact. Upon this point the court instructed the jury that the plaintiff was not bound by any custom of the defendant as to the ventilation of its barges, unless they believed from the evidence that he had personal knowledge thereof, or unless such custom was so well established and universal that his knowledge of the same would be conclusively presumed. This instruction appears to me to be entirely...

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