Caldwell v. Missouri Pacific Ry. Co.

• Citation: 80 S.W. 897,181 Mo. 455
• Parties: CALDWELL v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Decision Date: 10 May 1904
• Court: United States State Supreme Court of Missouri

80 S.W. 897

181 Mo. 455

CALDWELL v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Reversed.

Elijah Robinson for appellant.

(1) The court should have directed a verdict for defendant: There was not a particle of evidence in the case tending to show negligence on the part of the defendant; and when there is no substantial evidence to establish the facts which it is incumbent upon the plaintiff to prove, the court should direct a verdict for the defendant. Powell v Railroad, 76 Mo. 80; Landis v. Hamilton, 77 Mo 554; Jackson v. Hardin, 83 Mo. 175; Avery v Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 338; Havens v. Railroad, 155 Mo. 216. Where the evidence is of such character that a verdict must necessarily be based upon mere guess-work or conjecture upon the part of the jury, the court should direct a verdict for the defendant. Moon v. Railroad, 28 Mo.App. 262; Peck v. Railroad, 31 Mo.App. 123; Railroad v. Shertle, 97 Pa. St. 450. The simple fact of the accident having occurred is not evidence of negligence. Cooley v. Torts (2 Ed.), 92; Sheldon v. Sherman, 42 N.Y. 484; Roynton v. Rees, 9 Pick. 527; Express Co. v. Smith, 33 Ohio St. 511; Burton v. Davis, 15 La. Ann. 448; Brown v. Collins, 53 N.H. 442; Hanlon v. Ingram, 3 Ia. 81; Richards v. Rough, 53 Mich. 212. The rule res ipsa loquitur does not apply in this case. Gallagher v. Edison Co., 72 Mo.App. 576. (2) The evidence shows clearly that plaintiff's husband was guilty of contributory negligence, without which the accident would not have occurred. Railroad v. Estes, 37 Kan. 731; Lothrop v. Railroad, 150 Mass. 423; Culbertson v. Railroad, 88 Wis. 569; Burk v. Edison Co., 89 Hun 501.

John N. Southern and S.W. Hilt for respondent.

(1) Plaintiff's prima facie case was ample to take the case to the jury, but had it not been, the appellant by not standing on its demurrer and declining to introduce testimony on its own behalf, cured the defect. Peacock, whose deposition was read by appellant, testified that Caldwell did not give any signal from between the cars. When defendant introduced this evidence the consideration of the demurrer extended so as to include it and any other facts in his testimony and the testimony of any other witness in the case. Gallagher v. Edison Co., 72 Mo.App. 578; Hilz v. Railroad, 101 Mo. 36; Jennings v. Railroad, 112 Mo. 268; Whitaker, Smith on Negligence, chap. 6, pp. 419, 429; King v. Oil Co., 81 Mo.App. 155; Clark v. Railroad, 93 Mo.App. 456; Mirrielees v. Railroad, 163 Mo. 486. (2) The demurrer to plaintiff's evidence was properly overruled. There was uncontradicted evidence from which the jury could properly infer negligence on the part of the defendant. Keown v. Railroad, 141 Mo. 87; Land and Lumber Co. v. Tie Co., 79 Mo.App. 543; Moore v. Railroad, 73 Mo. 438. (a) Negligence is not a fact that is subject to direct proof, but is an inference from facts put in evidence, and when different minds might honestly draw different conclusions from the evidence the case should properly be left to the jury. Baird v. Railroad, 146 Mo. 282; Degge v. Express Co., 64 Mo.App. 102; Green v. Cooperage Co., 50 Mo.App. 202; Hamed v. Railroad, 51 Mo.App. 482; Chum v. Railroad, 55 Mo.App. 163; Reed v. Railroad, 94 Mo.App. 38. (b) The demurrer at the close of all the evidence was properly overruled. The plaintiff was entitled to have the judgment of the jury on the credibility of witnesses produced by the defendant and the value of their testimony. Gibson v. Zimmerman, 27 Mo.App. 90; Gannon v. Gas Light Co., 145 Mo. 502; Hadley v. Orchard, 77 Mo.App. 141; Freeman v. Pratt, 66 Mo.App. 283; Clark v. Shrimski, 77 Mo.App. 166; Gregory v. Chambers, 78 Mo.App. 294; Vogta v. Pilikan, 15 Mo.App. 471; Ross v. Clark, 14 Mo.App. 594.

OPINION

BURGESS, J.

This is an appeal from a judgment of the Jackson circuit court in favor of the plaintiff, in the sum of five thousand dollars, for the death of her husband, Gideon Caldwell, as a result of the alleged negligent and unskillful management of the defendant's agents and employees in charge of the engine and freight cars attached thereto, by reason of which plaintiff's husband was caught between two of said freight cars and killed. The deceased was a brakeman upon the train which caused his death.

"Plaintiff's husband was killed at Pixley Station, on the line of defendant's railway, a short distance east of Independence, Missouri, about 7:30 a. m., on the sixteenth day of December, 1899. He was an experienced railroad man and, at the time of his death, was in the employ of the defendant as a switchman. From Pixley Station, the point where the accident occurred, to Independence, there is a considerable up-grade, so that engines pulling heavy trains were accustomed to leave a part of the cars at said station, to be subsequently taken up the hill by another engine. The night before plaintiff's husband was killed a number of cars were placed on the side track at said station, and early the next morning the switch crew, of which the deceased was a member, went from Independence to Pixley Station for the purpose of taking these cars to Independence. The crew was composed of Noah Storms, foreman; Caldwell, plaintiff's husband, and Peacock, switchmen; E. I. Gorsuch, engineer; and J. H. Sechrist, fireman. They all went to Pixley Station in the switch engine and when they arrived there the engineer ran the engine on the side track where these coal cars were standing, and it was coupled to the car at the west end of the string. This was done either by Peacock or Caldwell, it being a duty that might properly be performed by either of them.

"Thereupon, Storms, the foreman, Peacock and Caldwell started east along the south side of said string of cars, Storms to take a memorandum of the numbers of the cars, and Caldwell to inspect the cars and see that they were in good condition. There were some eighteen or twenty cars in the string on the side track, but they intended to move only eleven of them. A portion of those which they intended to move were coal cars, and a portion of them box cars, the coal cars being at the west end of the string, next to the engine. All three of them went west along the south side of said string of cars until they reached the first box car, and then Peacock got on this box car for the purpose of releasing the brakes. He proceeded east along the tops of the cars, releasing the brakes, until he reached the eleventh car from the engine, that being the easternmost car of those which were to be moved. Storms and Caldwell proceeded east along the south side of the cars until they reached said box car. Thereupon Storms gave a signal for the engine to move forward, in response to which the engineer did move the engine forward but only about twenty feet when he discovered that the train had parted between the third and fourth cars from the engine -- that is, that only the three cars next to the engine were moving, the other cars not having moved at all. The engineer immediately stopped the engine, and it remained standing until he got a signal to back up to the cars which had not been moved.

"When Caldwell discovered that the cars had parted, he went forward and went in between the cars that had parted, the third and fourth cars from the engine. He had remained there a short time when he gave a signal for the engine to back up. He gave this signal from the south side of the cars, and that being the fireman's side of the engine he received the signal and communicated it to the engineer. Thereupon the engineer moved the engine back slowly until the cars came together. Storms, who was still near the rear end of the string which they intended to move, discovering that Caldwell did not come from between the cars, as he should have done, went forward to see what the trouble was. When he reached the point of the accident he found that Caldwell's body had been caught between the drawheads of the third and fourth cars, and he immediately gave the engineer a signal to move forward, and when he did so Caldwell's body, being released, fell to the ground, and it was discovered that he was dead.

"It was shown by the evidence of plaintiff as well as that of the defendant, that the movements of the engine were always under the control of the switchmen when they were switching cars and making couplings. Gorsuch, the engineer, was sworn as a witness on behalf of the plaintiff, and testified that after the cars had separated, as above stated, he stopped the engine and...