Haworth v. Kansas City Southern Railway Company

Decision Date29 April 1902
PartiesW. T. HAWORTH, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
CourtMissouri Court of Appeals

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

AFFIRMED.

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.

OPINION

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 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 train and loading the switch-points, the men resumed their places on it and Dyson told them to pump up and get out of the way of the gravel train, which was backing towards them. There was a very steep grade from that point to the steel pile and the testimony of some of the witnesses is that the car acquired a velocity of twelve or fifteen miles an hour as it went down the grade, instead of six to eight miles which was the usual velocity. When from forty to fifty feet from the steel pile, Bodkin threw his weight on the brake, diminishing the car's momentum so suddenly that four of the men on the front end were thrown from their positions to the ground and the plaintiff seriously injured by the fall and the car running on him after he fell.

The petition contains three specifications of negligence against the defendant; first, that the handcar was run by Dyson at a dangerous rate of speed, to-wit, at the rate of from twelve to twenty miles an hour; second, that Dyson's habit had been theretofore, when directing the operation of a handcar, to give an order (styled a "cautionary command") to stop at from one hundred and fifty to two hundred feet from the place at which it was intended to stop; but that he neglected to give such command on this occasion or to give it at the proper and customary time; third, that the defendant failed to use ordinary care to provide plaintiff a reasonably safe place in which to work, the handcar on which he was ordered to ride being overcrowded, as it contained eleven men and two switch-points, so that plaintiff's footing was precarious and he had no room in which to brace himself.

A verdict for eleven hundred dollars in favor of plaintiff was rendered.

At the conclusion of plaintiff's evidence, as well as at the conclusion of all of the evidence, an instruction in the nature of a demurrer to plaintiff's case was requested by the defendant and refused. This ruling as well as the rulings on other instructions and on the evidence offered, are assigned as errors.

A careful perusal of the testimony has convinced us the charges of negligence were supported by substantial proof, and that the circuit court ruled correctly in submitting the case to the jury.

The evidence in regard to the speed at which the car was running varied widely, plaintiff testifying it was making fifteen miles an hour, while one witness for the defendant swore its speed was not higher than six miles an hour. Other witnesses testified to eight, ten, and twelve miles. There was testimony also that the usual rate of speed was eight or ten miles an hour. Dyson told the men who were working the handles to pump up in order to escape the gravel train. The grade was steep and if an excessive speed was attained, it was with his knowledge, as he was on the car, and does not pretend he gave any direction to lower it.

That the car was crowded is not denied, but it is claimed there were no more than the usual number of men on it. The question in this connection is, not whether there were more than usual but more than were compatible with the reasonable safety of the men? The speed of the car was so high that the hands who were working the handles had to let go on account of the violent motion, and there was so little room they had to stand at the sides of the handlebars instead of in front of them. There was only about a foot of space between the levers and the ends of the car. The platform on which the occupants of the car stood was four and one-half feet wide with twelve or sixteen inches on either side of the levers. Four men were on the front and four on the rear besides two on the left-hand side and one on the right. Plaintiff testified he could not hold the handlebars without more room. The foregoing is according to the proof made by the plaintiff and we do not think such testimony should have been excluded from the consideration of the jury, because the defendant had theretofore loaded as many men on the car. Neither do we think plaintiff is debarred from recovering because he assumed the hazard, unless the danger was so great and obvious that men of ordinary caution...

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