77 S.W. 890 (Mo. 1903), Jones v. Kansas City

Citation:77 S.W. 890, 178 Mo. 528
Opinion Judge:VALLIANT, J.
Party Name:MARY JONES, and MARY JONES an Infant by her Next Friend, v. KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY, Appellant
Attorney:L. F. Parker and Pratt, Dana & Black for appellant. William Moore and James A. Reed for respondents.
Judge Panel:VALLIANT, J. Brace, Gantt and Fox, JJ., concur; Robinson, C. J., Marshall and Burgess, JJ., concur in the result.
Case Date:December 23, 1903
Court:Supreme Court of Missouri

Page 890

77 S.W. 890 (Mo. 1903)

178 Mo. 528

MARY JONES, and MARY JONES an Infant by her Next Friend,

v.

KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY, Appellant

Supreme Court of Missouri

December 23, 1903

Appeal from Jackson Circuit Court. -- Hon. Jno. W. Henry, Judge.

Affirmed.

L. F. Parker and Pratt, Dana & Black for appellant.

(1) The requests which were made by defendant at the close of plaintiffs' case and at the close of all the testimony, that a verdict in its favor be directed, should have been granted by the trial court. To entitle plaintiffs to the submission of their cause to a jury it was necessary for them to overcome certain presumptions and prove affirmatively certain facts. As to the presumptions: Wood's Master and Servant, secs. 382, 419; 2 Thompson on Negligence, p. 1053, sec. 48; Railroad v. Wagner, 33 Kas. 666; Telle v. Railroad, 50 Kas. 464. As to the facts necessary to be affirmatively proved: (a) The burden rested upon plaintiffs of proving affirmatively negligence on the part of defendant. McDermott v. Railroad, 87 Mo. 285; Bowen v. Railroad, 95 Mo. 268; Murray v. Railroad, 101 Mo. 236; O'Malley v. Railroad, 113 Mo. 319; Dowell v. Guthrie, 116 Mo. 646; Gurley v. Railroad, 104 Mo. 223. (b) Not only did the burden rest upon plaintiffs to affirmatively prove some such negligence on the part of defendant, but they were limited to, and the burden rested upon them of proving, negligence as alleged in their petition. Current v. Railroad, 86 Mo. 67; Harty v. Railroad, 95 Mo. 368; Telle v. Railroad, 50 Kas. 465; Gurley v. Railroad, 93 Mo. 450; Hite v. Railroad, 130 Mo. 132; McManamee v. Railroad, 135 Mo. 440; Raming v. Railroad, 157 Mo. 477; Feary v. Railroad, 162 Mo. 75. (c) The burden rested upon plaintiffs not only to prove negligence as alleged in the petition, but to prove that such negligence was the proximate cause of the injury complained of. Harlan v. Railroad, 65 Mo. 22; Stepp v. Railroad, 85 Mo. 229; Hudson v. Railroad, 101 Mo. 13; Schmitt v. Railroad, 160 Mo. 43; Bohn v. Railroad, 106 Mo. 433; Friel v. Railroad, 115 Mo. 503. (2) Under the law of Kansas, introduced in evidence in support of defendant's third plea, no negligence was imputable to defendant, his employer, for not having a derail switch on that side track, as the engineer assumed the risk of its absence. Rush, Admx., v. Railroad, 36 Kan. 138; Railroad v. Schroeder, 47 Kan. 323; Clark, Admx., v. Railroad, 48 Kan. 659. (3) It was not defendant's duty to "fasten and secure" the cars on its side track. Those words gave no proper idea of defendant's duty with regard to the cars. The words imply at least a condition of absolute safety, and that is a fair inference from them and one which most people would make. It is a familiar rule of law and practice that, where there are general allegations of negligence, followed by allegations of specific negligence, the latter control and constitute the issues made by the petition. McManamee v. Railroad, 135 Mo. 447; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railroad, 148 Mo. 75. It is well settled that it is error, especially in an instruction attempting to cover, as this did, all the issues in the case, to enlarge the issues, as made by the pleadings and testimony, or vary them. Dahlstrom v. Railroad, 96 Mo. 99; Schlereth v. Railroad, Id. 509; Gurley v. Railroad, 93 Mo. 445; Yarnell v. Railroad, 113 Mo. 579; Melvin v. Railroad, 89 Mo. 106; Jacquin v. Railroad, 57 Mo.App. 331. (4) The court erred in giving plaintiff's instruction 4. The instruction intimated to the jury that there was a question as to the sufficiency of defendant's appliances and means for preventing cars escaping from its side track, which they were to consider and pass upon in the case, when there was no such question, and they should have been told, as defendant requested in its instructions (2 and 5), that these matters were not to be considered by them. It was error to give this instruction which was not predicated upon any evidence. Stone v. Hunt, 114 Mo. 66; Wilkerson v. Eilers, Id. 245; Railroad v. Railroad, 118 Mo. 599.

William Moore and James A. Reed for respondents.

(1) The demurrer to plaintiff's evidence was properly overruled. While the storm, during which the cars escaped, was a severe one, it was not unusual or unprecedented in that locality. Even though the storm was severe and unusual, it does not excuse the defendant unless it was so extraordinary and unprecedented that the defendant could not reasonably be expected to anticipate its coming and provide against it. Strohrer v. Railroad, 105 Mo. 192; McPherson v. Railroad, 97 Mo. 255; Brash v. St. Louis, 161 Mo. 433. Whether the storm was one of such violence as to exculpate the defendant, was a question for the jury. Strohrer v. Railroad, 105 Mo. 196. If the escape of the cars was the result of the concurrence of the storm and the defendant's negligence, plaintiff should recover. Brash v. St. Louis, 161 Mo. 433. While the burden of proof was upon the plaintiff to prove the negligence of the defendant, it was not necessary that the proof should be direct and positive. It is sufficient if the facts proven were such as to sustain a reasonable inference by the jury of negligence. Browning v. Railroad, 124 Mo. 67; Cambron v. Railroad, 165 Mo. 544; Duerst v. Stamping Company, 163 Mo. 608. And where the evidence is conflicting the question of negligence is one for the jury. Murphy v. Railroad, 115 Mo. 111; Hamman v. Coal Co., 156 Mo. 232. Under the conflicting evidence as to whether the brakes were properly set on the cars and whether the defendant should have provided a derailing switch or blocks at LaCygne, the question of negligence or no negligence was properly submitted to the jury under appropriate instructions. Furthermore, the cars were shown to be in the charge of the defendant's agents at LaCygne, and their escape to the main track and collision with the train, of which the deceased was engineer, raises a presumption, in the absence of explanation, of want of care on part of defendant. The fact that there was a storm is no sufficient explanation. Blanton v. Dold, 109 Mo. 65; Minster v. Railroad, 53 Mo.App. 282; Gallagher v. Illuminating Co., 72 Mo.App. 577; Thomas v. Tel. Co., 100 Mass. 156. Negligence, like any other ultimate fact in issue, may be established by reasonable inferences as well as by direct proof. Blanton v. Dold, supra, citing Barnowski v. Helson, 89 Mich. 523. The duty of the defendant toward the deceased was properly defined and properly submitted to the jury by plaintiff's instruction 3. Whether the defendant negligently violated this duty was submitted in the other instructions, and there was ample evidence to justify the submission of the question to the jury. Hamman v. Coal Co., supra. The law is settled that it was the duty of the railroad company to use reasonable care, at least, to provide a safe and unobstructed track. Henry v. Railroad, 109 Mo. 493; Browning v. Railroad, 124 Mo. 67; Nichols v. Plate Glass Co., 126 Mo. 56; Bender v. Railroad, 137 Mo. 250; Pauck v. Beef Co., 159 Mo. 476. Whether the defendant company discharged the duty imposed upon it by law was, in the case at bar, a question for the jury. Henry v. Railroad, 109 Mo. 488; Bender v. Railroad, 137 Mo. 245. (2) The engineer did not assume the risk. Dickinson v. Railroad, 124 Mo. 146; Doyle v. Trust Company, 140 Mo. 2; Pauck v. Beef Co., 159 Mo. 478; Hamman v. Coal Co., 156 Mo. 232; Duerst v. Stamping Company, 163 Mo. 622; Murphy v. Railroad, 115 Mo. 111.

VALLIANT, J. Brace, Gantt and Fox, JJ., concur; Robinson, C. J., Marshall and Burgess, JJ., concur in the result.

OPINION

Page 891

[178 Mo. 534] In Banc

VALLIANT, J.

David R. Jones, who was the husband of the plaintiff Mary and the father of the infant Mary, was a locomotive engineer in the service of [178 Mo. 535] the defendant and was killed in a railroad accident at LaCygne, a station on defendant's road in the State of Kansas, which accident was caused, as plaintiffs allege, by the negligence of the defendant. The right of action is based on the following statutes of Kansas:

Paragraph 1251, General Statutes of Kansas of 1889, as follows: "Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage."

Also section 422 of chapter 80, Laws of 1868, known as paragraph 4518, General Statutes of Kansas of 1889, as follows: "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or

Page 892

next of kin, to be distributed in the same manner as personal property of the deceased."

Also paragraph 4519, General Statutes of Kansas of 1889, also designated as section 422a, as follows: "Be it enacted by the legislature of the State of Kansas, that in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other State or Territory, or when, being a resident of this State, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or where there is no widow, by the next of kin of such deceased."

The plaintiff is...

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