68 S.W. 111 (Mo.App. 1902), Haworth v. Kansas City Southern Railway Company

Citation:68 S.W. 111, 94 Mo.App. 215
Opinion Judge:GOODE, J.
Attorney:Lathrop, Morrow, Fox & Moore, Cyrus Crane and O. L. Cravens for appellant. White & Clay, John T. Sturgis and John G. Park for respondent.
Judge Panel:GOODE, J. Bland, P. J., and Barclay, J., concur.
Case Date:April 29, 1902
Court:Court of Appeals of Missouri

Page 111

68 S.W. 111 (Mo.App. 1902)

94 Mo.App. 215

W. T. HAWORTH, Respondent,



Court of Appeals of Missouri, St. Louis

April 29, 1902

Appeal from Newton Circuit Court.--Hon. Henry C. Pepper, Judge.


Judgment affirmed.

Lathrop, Morrow, Fox & Moore, Cyrus Crane and O. L. Cravens for appellant.

(1) The court should have sustained defendant's demurrer to the evidence, (a) because the negligence, if any, causing plaintiff's injuries was the negligence of a fellowservant, for which, in the State of Arkansas, defendant is not liable; (b) because there was not sufficient proof of any negligence on defendant's part to warrant the submission of the case to the jury. Sandels & Hill's Digest, Laws of Ark. (1893), secs. 600, 6248 and 6249; Railroad v. Becker (Ark.), 39 S.W. 358; Railroad v. Gaines, 47 Ark. 555; Railroad v. Rice, 51 Ark. 467; s. c., 11 S.W. 699; Railroad v. McCain (Ark.), 55 S.W. 165; Railroad v. Triplett, 54 Ark. 296; s. c., 15 S.W. 833; Railroad v. Brown (Ark.), 55 S.W. 165; Railroad v. Henson, 61 Ark. 302; s. c., 32 S.W. 1079; Railroad v. Gann (Tenn.), 47 S.W. 493; Fordyce v. Stafford (Ark.), 22 S.W. 161; Ryan v. McCully, 123 Mo. 636. (2) Plaintiff's instruction on the measure of damages (No. 4) was wrong in two respects; first, in permitting a recovery of damages for the amount and value of plaintiff's lost time, without evidence as to such value; second, in permitting a recovery for an impairment to plaintiff's earning capacity, without allegation or proof thereof. Mammerberg v. Railroad, 62 Mo.App. 563; O'Brien v. Loomis, 43 Mo.App. 29; Mauerman v. Railroad, 41 Mo.App. 348. (3) The court erred in giving plaintiff's instruction No. 1: (a) there was not sufficient evidence to support it; (b) it included as grounds of negligence risks assumed by plaintiff. Ryan v. McCully, 123 Mo. 636; Fordyce v. Stafford (Ark.), 22 S.W. 161. (4) The court erred in excluding the testimony of Dr. H. H. Johnson offered by defendant. R. S. 1899, sec. 4659; Weitz v. Railroad, 53 Mo.App. 39; Webb v. Railroad, 89 Mo.App. 604.

White & Clay, John T. Sturgis and John G. Park for respondent.

The court rightly overruled the demurrer to the evidence because: (1) The proof showed an inexcusable overcrowding of the handcar, preventing plaintiff taking proper precautions for his safety. (2) The proof also showed, and the jury have found, that the car was being run at an excessively high and dangerous speed. (3) The proof showed that Dyson was entrusted by defendant with the authority of superintendence, control and command of plaintiff, with authority to direct plaintiff in his work, and was therefore viceprincipal of defendant and not plaintiff's fellow-servant. Sandels & Hill's Digest, sec. 6248; Railroad v. Rickman, 65 Ark. 138. (4) Plaintiff's instruction No. 4 (on the measure of damages) was correct. It was proven that plaintiff, before his injury, was a strong, healthy young man, twenty-one years old, and a laborer by occupation. Defendant claims the proof was not complete as to value of lost time without showing how much defendant was paying him at the time of the injury. That is not necessarily the value of the time lost. It has been distinctly held that the jury may determine for themselves the value of time lost by a laborer. Loe v. Railroad, 57 Mo.App. 356, 357; Murray v. Railroad, 101 Mo. 240. (5) This made Cope's testimony competent. The specific objection to this testimony was that the witness's "experience dates back to a period of two years and long prior to this accident." "When a particular status exists, the law will presume its continuance." Cargile v. Wood, 63 Mo. 514; Jennings v. Sparkman, 48 Mo.App. 253. (6) The record showed positively, at the time Dr. Johnson was offered as a witness against his patient, that the doctor had acquired his information while attending plaintiff in a professional character, and such information was necessary to enable him to dress plaintiff's wounds as a surgeon. He was therefore incompetent to testify against plaintiff's consent. R. S. 1899, sec. 4659; Mellor v. Railroad, 105 Mo. 461; Norton v. Moberly, 18 Mo.App. 459; Corbett v. Railroad, 26 Mo.App. 626; Streeter v. Breckenridge, 23 Mo.App. 251. (7) And it was entirely immaterial that the doctor was employed by defendant. Freel v. Railroad, 97 Cal. 40; Raymond v. Railroad, 65 Iowa 152.

GOODE, J. Bland, P. J., and Barclay, J., concur.


[94 Mo.App. 218] GOODE, J.

--Haworth, the plaintiff, was hurt by being precipitated headlong from a handcar which was running on the line of the defendant's railway, and instituted this action to recover damages for the injuries sustained.

He was a member of a gang of workmen about thirty-five in number, under the superintendency of James Dyson, whose business it was to ballast and repair the railroad track. Dyson called out his men one morning at the station of Decatur, Arkansas, and had eleven of them, including the plaintiff and himself, get on a handcar to go to a station named Gravett.

The handcar encountered a gravel train about a mile from Decatur, standing on a siding with its rear end projecting on the main track. Dyson ordered it carried around [94 Mo.App. 219] the train and reset on the track beyond. He also ordered the men at that time to put two switch-points on the car, remarking they would stop at a steel pile, from an eighth to a quarter of a mile further down the track, and get some railbraces.

A hand named Bodkin was charged with the duty of slackening the speed of the car by placing his foot on a brake which projected above the floor of the car and controlled the speed. After getting the handcar around the gravel...

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