Cole v. St. Louis Transit Company
| Decision Date | 20 June 1904 |
| Citation | 81 S.W. 1138,183 Mo. 81 |
| Parties | COLE v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.
Affirmed.
Geo. W Easley with Boyle, Priest & Lehmann for appellant.
(1) The court erred in not sustaining the defendant's demurrer to the plaintiff's amended petition. The petition nowhere alleges that plaintiff did not know of each and every one of the alleged defects and omissions set out in the amended petition. There is an apparent conflict of authority on the question of whether an employee, suing for an injury arising from a defective appliance, must in his pleading negative knowledge of the existence of such defect. That conflict has grown up by some courts treating contributory negligence and assumption of risk as identical in principle. Beach on Con Neg. (3 Rev. Ed.), p. 538, sec. 370; Railroad v. Sanford (Ind.), 19 N.E. 770. The rule that the employee assumes the risks from injury arising from defects of which he has full knowledge, has but few exceptions. Those exceptions have generally been fastened on the rule in case where the attempt was to make the fact of knowledge stand for and become proof of contributory negligence. Flynn v. Railroad, 78 Mo. 195; Crane v. Railroad, 87 Mo. 588; Johnson v. Railroad, 96 Mo. 340; Young v. Shickle, etc., Co., 103 Mo. 324. In none of these cases did the question fairly arise, as a question of pleading, whether the plaintiff must negative knowledge of a defect which has caused his injury. The minority of cases dispose of the question on the ground that contributory negligence need not be negatived, and, by treating assumption of the risk as identical with contributory negligence, adopt the rule that it need not be negatived in pleading. This is illogical and can not be justified by any fair reasoning. The great weight of authority and of reason is to the effect that it is necessary to allege ignorance of the defects in order to show that the injury complained of was not the result of some hazard assumed by the employee. 13 Ency. Pl. and Prac., p. 903; Beach on Con. Neg. (3 Rev. Ed.), secs. 353, 360; Railroad v. Daley, 110 Ind. 75, 10 N.E. 631; McDermott v. Railroad, 87 Mo. 285; Wood on Master and Servant, secs. 382, 414 and 422. (2) The court erred in admitting evidence of what plaintiff had earned in other and distinct business from that in which he was engaged at the time of his injuries, and in years long antecedent to his injuries. This evidence was too remote, and invited the jury to conjecture and speculate in regard to the future earnings. There was no allegation in the petition that would admit proof of these prior earnings in a different occupation. When not alleged, they could not be proven. 5 Ency. Pl. and Prac., 717-719; Railroad v. Donnelly, 87 F. 135. (3) The defendant's demurrer to plaintiff's evidence should have been sustained. The following facts appeared from the undisputed evidence offered by plaintiff: (a) That the plaintiff knew that the brake did not work so as to brake the rear coach. (b) That he knew that it took longer to stop the train, in the condition he knew it to be in, than if it had worked on the rear coach, and that ordinary care required the gripman, under such conditions, to take additional precautions in operating the train. (c) That plaintiff knew that the motorman on the Cherokee car was not observing the car plaintiff was operating, but was, in fact, looking in the opposite direction. (d) That with all this knowledge, plaintiff started his train at about the same instant the Cherokee car started, and that his car, in consequence thereof, struck the Cherokee car. (e) That the track had not been sanded and was slick and slippery and the train liable to slide. These facts being undisputed, and not contradicted by any one, it became, and was, a question of law whether the plaintiff was guilty of contributory negligence. These undisputed facts left no room for doubt, and the court should have decided the question of contributory negligence as a question of law. Beach on Con. Neg. (3 Rev. Ed.), secs. 447, 449. (4) The court erred in giving the first instruction for plaintiff. It is erroneous in the following particulars: (a) It erroneously assumes that defendant's starter, Gold, was not a fellow-servant of plaintiff, but was a vice principal of defendant. McGowan v. Railroad, 61 Mo. 528; 12 Am. and Eng. Ency. of Law (2 Ed.), 1019. As a matter of law, the car-starter, Gold, was not a vice principal. Sams v. Railroad, 174 Mo. 53. The question of Gold's authority should have been submitted to the jury on the evidence offered by plaintiff, and the jury instructed as to the legal effect of such facts, if the jury found them to be true. It was a debatable question, on the evidence, as to what Gold's authority was. (b) It erroneously states the degree of care required of plaintiff. It only requires that the plaintiff should have exercised "reasonable and ordinary care as a gripman on said car." Under the facts of this case, the plaintiff was charged with a much higher degree of care than suggested in this instruction. (c) It ignores the defense pleaded by defendant, that the plaintiff "assumed the risk of injury" from the defaults alleged against defendant. An instruction which ignores a substantial defense which is supported by the evidence, and no other instruction given in the case curing this error, is fatally defective. Sullivan v. Railroad, 88 Mo. 169; Owens v. Railroad, 95 Mo. 169; Hanheide v. Railroad, 78 S.W. 820; 11 Ency. Pl. and Prac., p. 190, par. 14.
R. P. & C. B. Williams for respondent.
(1) Where the negligence of the master is combined with the negligence of the fellow-servant in producing the injury, the master is liable, and the negligence of such fellow-servant can not avail the master as a defense. Deweese v. Meramec Iron Mining Co., 128 Mo. 423; Young v. Schickle, etc., Co., 103 Mo. 324; Browning v. Railroad, 124 Mo. 55; Ellingson v. Railroad, 60 Mo.App. 679; 12 Am. and Eng. Ency. of Law (2 Ed.), 905; Haworth v. Railroad, 94 Mo.App. 215. (2) If there is concurrent negligence of the master and fellow-servant, and the injury would not have occurred but for the negligence of the master, the master is liable. Authorities under point 1. (3) There was no assumption of risk on the part of plaintiff by continuing in the service of the defendant after knowledge of the defective appliances, and defendant's failure to repair. The defects were not so obviously and glaringly hazardous that a prudent person would not use them. Pauck v. St. Louis Beef and Prov. Co., 159 Mo. 477; Halloran v. Union Iron and Fdy. Co., 133 Mo. 470; Haniman v. Kansas City Star, 81 Mo.App. 124. (4) Complaint and notice of the defective appliances to Richardson, defendant's foreman at the power house, and to Gold, defendant's starter at the Fourth street terminus, was notice to the defendant. Keown v. Railroad, 141 Mo. 86; Bradley v. Railroad, 138 Mo. 293; 1 Shearman & Red. on Neg., 222. (5) It was not necessary for the petition to aver that the plaintiff did not know of the defective appliances. Crane v. Railroad, 87 Mo. 588; Flynn v. Railroad, 78 Mo. 195; Johnson v. Railroad, 96 Mo. 340; Young v. Shickle, etc., Co., 103 Mo. 324.
This is an appeal from a judgment in favor of the plaintiff for $ 5,000, as damages, for injuries sustained by him in a collision of cars on defendant's street railroad.
At the date of the accident, March 7, 1901, the defendant was operating certain street railroads in St. Louis, one line of which was in Olive street running east and west, and another in Sixth street running north and south. At that date the Olive street line was operated by cable, the Sixth street line by electricity. Plaintiff was an employee of defendant in the capacity of gripman on the Olive street line.
The petition alleges that as the train on which the plaintiff was operating as gripman, going west on Olive street, approached the crossing of defendant's tracks in Sixth street, there was a car of defendant in Sixth street headed south approaching the same crossing; that by the rules of the defendant company the Olive street train had the right-of-way and it was the duty of the motorman on the Sixth street car to give way and let the Olive street cars pass, but, disregarding that duty, he ran his car aiming to pass the crossing in the face of the approaching Olive street train, with the result that the cars came into collision. For specifications of acts of negligence on the part of the defendant as master, as distinguished from the acts of the motorman on the Sixth street car, the petition alleges that the track was muddy and slick, no sand had been put on it, the sand box on the grip car was out of order and plaintiff could not use it to throw sand on the rail; there was no flagman at the crossing; the brake on the grip car which was designed to operate on both the grip car and the trailer, was out of order, so that it could not be applied to the wheels of the trailer, of all which the defendant had notice; that the consequence of the defective brake was that the plaintiff was unable to stop his train on the slippery track in time to avoid the collision.
The answer was a general denial and a plea that if the alleged omissions were true they were known to the plaintiff before the accident and by using them with the knowledge he assumed the risk; also a plea that he was guilty of contributory negligence in not looking out for a car on Sixth street, and in not using the appliances for sanding the rail and stopping the car in time to have stopped the same and avoided the accident.
Reply, general denial.
The evidence for the plaintiff tended to...
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