Porter v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1879
• Citation: 71 Mo. 66
• Parties: PORTER v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 66

PORTER

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

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Appeal from Clinton Circuit Court.--HON. GEO. W. DUNN, Judge.

AFFIRMED.

Geo. W. Easley for appellant.

1. The defect through which the plaintiff claims to have received his injury being an open and obvious one, which any person, by the use of his ordinary faculties, could have observed and avoided, the plaintiff assumed the risk of injury from such defect. Laning v. N. Y. C. R. R. Co., 49 N. Y. 521, 532; De Graff v. R. R. Co., 3 T. & C. (N. Y.) Sup. Ct. 257, 255; Cagney v. H. & St. Jo. R. R. Co., 69 Mo. 416; Smith v. R. R. Co., 69 Mo. 38, 32; McGlynn v. Brodie, 31 Cal. 376; Stone v. Oregon Manfg. Co., 4 Oregon 52, 56; Hayden v. Smithville Manfg. Co., 29 Conn. 548, 560; Hulett v. St. Louis, K. C. & N. Ry., 67 Mo. 239; Devitt v. R. R. Co., 50 Mo. 305, 302; Dale v. R. R. Co., 63 Mo. 455 Assop v. Yates, 2 Hurl. & Nor. 768; Dyner v. Leach, 26 Law Jour. 221; s. c., 40 Eng. Law & Eq. 491; Senior v. Ward, 102 Eng. C. L. 385; Griffiths v. Gidlow, 3 Hurl. & Nor. 648; Watling v. Oastler, Law Rep. 6 Exch. 73; Patterson v. Wallace, 28 Eng. Law & Eq. 48; Skip v. R. R. Co., 24 Eng. Law & Eq. 396; Seymour v. Maddox, 16 Q. B. 316; Ladd v. R. R. Co., 119 Mass. 412.

2. No evidence was offered to show that defendant knew or ought to have known of the existence of the gully or hole by which plaintiff was thrown down and injured If we are to be held to knowledge of the particular defect by proof the knowledge of the general character of the side track, shall not proof of knowledge on the part of the plaintiff of the same general character be held as knowledge to him of the particular defect also? Negligence cannot be presumed against us from the fact of the injury, but the burden of proving it is on the plaintiff. Shultz v. R. R. Co., 36 Mo. 13, 32. And there is not a particle of evidence to show that this hole had existed a sufficient length of time to have made it the duty of defendant or any of its agents to have discovered the same. It may only have been there a few hours before the accident. The law presumes that the company has performed its duty and this presumption must be overcome by the evidence before there can be any recovery. Wood, Master and Servant, § 368.

3. The action being founded on a breach of the implied duty of the master to use care to provide a safe track, the damages for a breach thereof, no wantonness or malice being charged, should have been confined to the pecumary loss. Mental pain and anguish were not proper elements of the damages. Johnson v. Wells, 6 Nev. 224; Fay v. Parker, 53 N. H. 359; Blake v. Midland Ry., 10 Eng. Law & Eq. 437; 2 Greenleaf Ev., 267; Flemington v. Smithers, 2 Car. & Payne 292.

4. The damages are excessive, being twice the amount the defendant would have been liable for had death onsued, and the amount recovered being placed at interest would realize twice as much as the record shows the plaintiff could earn. Bridge Co. v. Loomis, 20 Ill. 235; Railroad Co. v. Welch, 52 Ill. 183; Collins v. R. R. Co., 12 Barb. 500; Murray v. R. R. Co., 47 Barb. 205.

Allen H. Vories for respondent.

1. It was not the duty of plaintiff, nor in his power, nor did he have the opportunity, nor skill, to know the defects of the track on which he was injured. And without investigation, he had the right to rely upon the presumption that his employer had furnished him an ordinarily safe track on which to work. Snow v. H. R. R. Co., 8 Allen 441; Seaver v. Boston & M. R. R. Co., 14 Gray 466; Gibsonv. Pacific R. R. Co., 46 Mo. 163; Brothers v. Cartter, 52 Mo. 372; Devitt v. Pacific R. R. Co., 50 Mo. 302; Porter v. H. & St. Jo. R. R. Co., 60 Mo. 160; Dale v. The St. L., K. C. & N. Ry. Co., 63 Mo. 455, 459.

2. It was defendant's duty to provide plaintiff, as its servant, good, safe and properly constructed tracks adapted to the carrying on of its business, to use all reasonable care and precaution for plaintiff's safety, and the degree of care must be proportionate to the dangerous nature of the machinery used. Gibson v. P. R. R. Co., 46 Mo. 163; Kennedy v. N. M. R. R. Co., 36 Mo. 351; Porter v. H. & St. J. R. R. Co., 60 Mo. 160; Lewis v. St. L. & I. M. R. R. Co., 59 Mo. 495; Keegan v. Kavanaugh, 62 Mo. 232; Whalen v. Centenary Church, 62 Mo. 326; Dale v. The St. L., K. C. & N. Ry. Co., 63 Mo. 455; Cayzer v. Taylor, 10 Gray 274; Castle v. Duryea, 32 Barb. 480; Morgan v. Cox, 22 Mo. 373; Ryan v. Fowler, 24 N. Y. 410; McDermott v. P. R. R. Co., 30 Mo. 115; Gorman v. P. R. R. Co., 26 Mo. 441.

3. If the agents of the defendant whose duty it was to keep the track in repair, knew of its defects and improper construction, the knowledge of such agents was the knowledge of defendant. Harper v. St. L. R. R. Co., 47 Mo. 567; Brothers v. Cartter, 52 Mo. 372; Lewis v. St. L. & I. M. R. R. Co., 59 Mo. 507.

4. The ninth and tenth instructions, asked by defendant, were properly refused. Plaintiff had neither the time, skill nor opportunity, nor was it his business to examine for defects in defendant's track. The defendant had men employed whose business it was to examine said track and see to its repairs. Even a knowledge on the part of the plaintiff of the defect complained of is not of itself an answer to the action. Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 536; Huddleston v. Lowell Machine Shops, 106 Mass. 286; Dale v. The St. L., K. C. & N. Ry. Co., 63 Mo. 455; Conroy v. Vulcan Iron Works, 62 Mo. 35; Gibson v. Pacific R. R. Co., 46 Mo. 163; Porter v. H. & St. J. R. R. Co., 60 Mo. 160.

5. Where two juries have passed upon the question of damages, to set the second verdict aside upon the ground of excessive damages, would be “usurpation of the province of the jury.” Goetz v. Ambs, 27 Mo. 28; Kennedy v. North Mo. Ry. Co., 36 Mo. 351; Whalen v. St. L., K. C. & N. Ry., 60 Mo. 329; Dale v. St. L., K. C. & N. Ry., 63 Mo 455; Graham v. Pacific R. R. Co., 66 Mo. 536.

HENRY, J.

This suit was instituted in the Buchanan circuit court by plaintiff, an employee of the defendant, to recover damages for an injury sustained by him while engaged as a brakeman, in consequence of a defective track which it is alleged in the petition, was on the 5th day of March, 1873, and for a long time prior thereto had been entirely unsafe and extremely dangerous to defendant's employees, of which defendant had notice and plaintiff was ignorant.

The evidence for plaintiff tended to prove, and we think proved, the condition of the track to have been as alleged by plaintiff. The ties upon which the rails rested were not covered, nor were the spaces between them filled. Gullies and ditches had been washed in the road, and there was an irregularity in the distances between the ties. In some places holes had been washed under the ties, and in coupling cars on the night of the 5th day of March, 1873, plaintiff's foot was caught in a hole under a tie, by which he was thrown down and a car passed over his legs producing injuries which necessitated the amputation of one of his legs below the knee and two toes of the other foot. This defect in the road was not patent, but it required inspection to discover it. The plaintiff boarded at the Huxley House, on a street parallel with the road, and in passing from that house along the sidewalk to defendant's yard, in which plaintiff was at work, obstructions and other defects in the road were observable, but the particular defect which occasioned the injury to plaintiff was not. He was ignorant of its existence, and the evidence showed that more than once before the accident occurred, the attention of the servant of the company whose duty it was to attend to the tracks and keep them in order, was called to the dangerous condition of the track, but no steps were taken to repair it. His attention was not called to the specific defect in the road here complained of, but to its general unsafe and dangerous condition. It was the duty of the company to its employees, to exercise reasonable precautions to keep its track in a reasonably safe condition, and we think the evidence abundantly shows, that, by the exercise of even the lowest degree of care, they would have ascertained this defect, and removed it. There was conflicting evidence as to the general condition of the track, but as to the existence of the specific defect which occasioned the injury to plaintiff there was not; neither was there any evidence to show that from the sidewalk it was observable.

For plaintiff the court gave the following instructions: 1. It is admitted by the pleadings in this case, that at the time mentioned in plaintiff's petition the defendant was a railroad corporation, operating its railroad from Hannibal to St. Joseph, Missouri; and that for the purpose of carrying on its business, said defendant had erected depots and laid out tracks, switches, side tracks and other tracks in the said city of St. Joseph.

2. It was the duty of defendant in prosecuting its business and in the construction of its tracks, to use and exercise care, skill and caution to protect the lives and persons of its employees; and the degree of care must be proportionate to the dangerous nature of the means, instruments and machinery used.

3. If the jury believe from the evidence that plaintiff, by contract with defendant, entered into her employ as a brakeman in her yards in the city of St. Joseph, to do and perform such work as was required of him as such employee, then the law presumes that in accepting such work he only assumed the ordinary risk or danger of such employment, and did not assume or contract with reference to any risk or danger arising or resulting from an improper or defective track used by defendant in the prosecution of its business, unless he, plaintiff, knew of the defects and dangers, and the increased dangers arising from such defects.

4. If the jury believe from the evidence that the agents of the...