84 S.W. 929 (Mo. 1905), Young v. Waters-Pierce Oil Company

Citation:84 S.W. 929, 185 Mo. 634
Opinion Judge:GANTT, P. J.
Party Name:YOUNG v. WATERS-PIERCE OIL COMPANY, Appellant
Attorney:Johnson & Richards and George H. Williams for appellant. Moses Whybark, Ralph Wammack and N. A. Mozley for respondent.
Judge Panel:GANTT, P. J. Burgess, J., concurs; Fox, J., having presided on the circuit, took no part in the hearing of this appeal.
Case Date:January 31, 1905
Court:Supreme Court of Missouri
 
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Page 929

84 S.W. 929 (Mo. 1905)

185 Mo. 634

YOUNG

v.

WATERS-PIERCE OIL COMPANY, Appellant

Supreme Court of Missouri, Second Division

January 31, 1905 [*]

Appeal from Bollinger Circuit Court. -- Hon. Jas. D. Fox, Judge.

Affirmed.

Johnson & Richards and George H. Williams for appellant.

(1) Knowing of the presence of the pipe and its danger, and beginning his employment with such knowledge, and continuing to work under such conditions, Young waived the danger and assumed the risk of the employment. Junior v. Elec. Light Co., 127 Mo. 83; Nugent v. Milling Co., 131 Mo. 245; 2 Thom. Neg., 1008; Thompson v. Railroad, 109 Mo. 199; Roberts v. Tel. Co., 166 Mo. 379; Doyle v. Trust Co., 140 Mo. 1. It is true, as held in this State, that the mere fact that the servant has notice of the defect, and, notwithstanding, continues his employment, may not charge him with contributory negligence or the assumption of risks so as to defeat his recovery for injuries suffered by reason of such defect, but it is equally true and settled in this State that if it appears that the servant not only had notice of the defect, but knew or might have known in the exercise of ordinary common sense and prudence, the danger to himself from such defect, he is held by continuing his employment to have assumed the risk. The court makes a distinction between the knowledge of a defect and the knowledge of the danger. Doyle v. Trust Co., supra; Halloran v. Iron and Foundry Co., 133 Mo. 470; Wray v. Electric, etc., Co., 68 Mo.App. 380; Booth v. Air Line, 76 Mo.App. 516; Winkler v. Basket Co., 137 Mo. 394; Lacey v. Oil Co., 129 Mo. 32; Lovejoy v. Railroad, 125 Mass. 79; Bellows v. Railroad, 157 Pa. St. 51; Murphy v. Railroad, 115 Mo. 125; Wood v. Locke, 147 Mass. 605. (2) The deceased was guilty of such contributory negligence as to bar a recovery by the plaintiff in this case. His act was almost suicidal. The court refused an instruction for a nonsuit in the face of convincing testimony. Murphy v. Railroad, 115 Mo. 125; Walkin v. Lumber Co., 86 Me. 191; Roble v. Railroad, 35 Minn. 84; Wheat v. St. Louis, 179 Mo. 572.

Moses Whybark, Ralph Wammack and N. A. Mozley for respondent.

(1) Defendant erected and maintained the pipe on the right-of-way of the railroad without regard to any degree of care, precaution or vigilance for the protection of the employees of the railway company, whose duties, in managing and operating moving trains, defendant knew compelled them many times daily to pass the end of the pipe, and that in doing so they would be constantly exposed to the danger of being injured by it. Under the facts of this case defendant was guilty of a manifest breach of duty to plaintiff's husband, and his coemployees who might have been injured by the pipe while performing their ordinary duties on the trains, and it is liable in this action for the death of her husband. Roddy v. Railroad, 104 Mo. 234; Geissman v. Elec. Co., 173 Mo. 654; Erslew v. Railroad, 49 La. Ann. 86; Ella v. Boyce, 70 N.W. 1106; Elevator Co. v. Lippert, 11 U.S.C. C. App. 521, 63 F. 942; Van Winkle v. Steam Boiler Ins. Co., 19 A. 472; Railroad v. Snyder, 55 Ohio St. 361; Railroad v. Miles, 24 U.S.C. C. App. 559; Elec. Co. v. Garden, 23 U.S.C. C. App. 649; Giraudi v. Elec. Co., 107 Cal. 120, 28 L. R. A. 596; Perhem v. Elec. Co., 33 Ore. 451, 40 L. R. A. 799; Haynes v. Gas Co., 114 N.C. 203, 26 L. R. A. 810; Sykes v. Railroad, 77 S.W. 723; Griffin v. Elec. Co., 164 Mass. 492, 32 L. R. A. 400; Clements v. Elec. Co., 44 La. Ann. 692, 16 L. R. A. 43; Illingsworth v. Elec. Co., 161 Mass. 583, 25 L. R. A. 552; Railroad v. Dignan, 56 Ill. 487; Railroad v. Frelke, 110 Ill. 498; Dowell v. Guthrie, 99 Mo. 652; Conway v. Reed, 66 Mo. 346; Lynds v. Clark, 14 Mo.App. 74; 21 Am. and Eng. Ency. Law (2 Ed.), pp. 460, 461, 462, 467, 470, 471. (2) (a) It is not necessary that a contractual relation should exist between the parties, nor that the injury should be one resulting from the violation of a duty owing to the general public. Whenever a person should reasonably apprehend that, as the natural and probable consequences of his act or neglect, another will be placed in a situation of danger of receiving injury, a duty of exercising due care to prevent such injury arises. And if the injury results from the failure to use such care, a liability to the person injured exists in the absence of any other controlling fact. Railroad v. Snyder, supra; Ella v. Boyce, supra; Elevator Co. v. Lippert, supra; Van Winkle v. Steam Boiler Ins. Co., supra; Rupard v. Railroad, 88 Ky. 280, 7 L. R. A. 316; Moon v. Railroad, 46 Minn. 109; Burkhart v. Schott, 74 S.W. 430; Roddy v. Railroad, 104 Mo. 234; Lampert v. Gaslight Co., 14 Mo.App. 376; Geissman v. Elec. Co., 173 Mo. 654. (b) That the consequences which might result from the act were not foreseen is no excuse. If injury might reasonably have been anticipated, or the occurrence of the injury would not in the minds of reasonable men be in the highest degree unlikely, the defendant is answerable for the negligent act. Quill v. Tel. Co., 34 N.Y.S. 471; State ex rel. v. Finn, 87 Mo. 316; Miller v. Railroad, 90 Mo. 394; Banks v. Railroad, 40 Mo.App. 464; Graney v. Railroad, 140 Mo. 98; Railroad v. Carlin, 49 U.S.C. C. App. 609; Doyle v. Railroad, 77 Iowa 607, 4 L. R. A. 420; 21 Am. and Eng. Ency. Law (2 Ed.), 486, 487; Railroad v. Locke, 112 Ind. 417. (c) And whether the consequences of the act of the defendant in erecting the pipe so close to the track of the railroad as to endanger the employees on trains ought to have been foreseen by it, was a question for the jury, and the court properly submitted it to them by instruction 2, given on request of plaintiff. Lillibridge v. McCann, 117 Mich. 84, 41 L. R. A. 381; Quill v. Tel. Co., supra. (d) Defendant had obtained from the railway company a special privilege in the use of a portion of its right-of-way, to be enjoyed by it at Bloomfield, and it thereupon became its duty to use especial care in the exercise of that privilege towards the train employees of the railway company performing the train service plaintiff's husband did. Chicago v. Robbins, 67 U.S. 418, 17 L.Ed. 303; Reedy v. Brewing Assn., 161 Mo. l. c. 533. (3) The defendant by using that part of the right-of-way of the railway company over which the pipe reached, and ended near the track, in the manner it did, owed them the same duties the railroad company owed its own employees in working at and about the pipe. Roddy v. Railroad, 104 Mo. 250; Martin v. Railroad, 95 Ky. 616; Railroad v. Frelke, 110 Ill. 502; Sullivan v. Railroad, 23 Ill.App. 646; McMarshall v. Railroad, 80 Iowa 762; Robertson v. Railroad, 160 Mass. 193. (4) The fact that the railway company was guilty of negligence in permitting the defendant to negligently erect an obstruction on its right-of-way dangerous to its train employees, and permitting it to remain in that condition, does not excuse defendant for negligently erecting and maintaining the obstruction. Both the railway company and defendant were liable for any injury received by reason of the negligence, and plaintiff could sue both or either as she saw fit. Newcomb v. Railroad, 169 Mo. 422; Taylor v. Railroad, 137 Mo. 369; Benjamin v. Railroad, 133 Mo. 291; Waller v. Railroad, 59 Mo.App. 410; Pratt v. Railroad, 77 N.W. 1066; Quill v. Tel. Co., 34 N.Y.S. 470; Hunt v. Railroad, 14 Mo.App. 160; Railroad v. Chambers, 15 U.S.C. C. App. 332; Railroad v. Cummins, 106 U.S. 700, 27 L.Ed. 267; Railroad v. Land Co., 17 L. R. A. 35; 21 Am. and Eng. Ency. Law (2 Ed.), pp. 495-96. Where two causes combine to produce injuries defendant is not relieved of liability because it is responsible for only one of such causes. Newcomb v. Railroad, 169 Mo. 422; Board of Com'rs v. Mutchler, 36 N.E. 534. And all parties guilty of the act are liable, and may be sued either jointly or severally. Ice Machine Co. v. Keifer, 10 L. R. A. 699; Stanley v. Railroad, 114 Mo. 606. (5) But for the close proximity of the end of the pipe to the track of the railroad the death of plaintiff's husband would not have occurred; defendant's negligence in thus erecting and maintaining the pipe was the proximate cause of the injury. Lore v. Mfg. Co., 160 Mo. 625; Reed v. Railroad, 50 Mo.App. 504; The Joseph B. Thomas, 30 U.S.C. C. App. 338; Dickson v. Railroad, 124 Mo. 149; Railroad v. Kellogg, 94 U.S. 460, 24 L.Ed. 259; 21 Am. and Eng. Ency. Law (2 Ed.), pp. 485, 486. (6) The pipe was erected, used and maintained by the defendant, and was a nuisance on the right-of-way of the railroad company, dangerous to the train employees performing their ordinary duties requiring them to be on the cars, and even though the railway company is liable the defendant as lessee is also liable. 18 Am. and Eng. Ency. Law (2 Ed.), 243, 244, 257, 258, 259; 21 Am. and Eng. Ency. Law (2 Ed.), 719; Buesching v. Gaslight Co., 73 Mo. 219; Grogan v. Foundry Co., 87 Mo. 327; Carvin v. St. Louis, 151 Mo. 347; Gordon v. Peltzer, 56 Mo.App. 602; Gilliland v. Railroad, 19 Mo.App. 411; Stanley v. Railroad, 114 Mo. 623. (7) The American Mortality Tables as contained in volume 2 of the Revised Statutes of 1879, and introduced by plaintiff, were competent evidence. 2 R. S. 1879; Boetger v. Iron Co., 136 Mo. 531; O'Mellia v. Railroad, 115 Mo. 203; 20 Am. and Eng. Ency. Law (2 Ed.), 883, 884, 885; 8 Am. and Eng. Ency. Law (2 Ed.), 940j. And also the number of children left by deceased. O'Mellia v. Railroad, 115 Mo. 222; Soeder v. Railroad, 100 Mo. 682; Schlereth v. Railroad, 115 Mo. 102; Tetherow v. Railroad, 98 Mo. 87; 8 Am. and Eng. Ency. Law (2 Ed.), 940k.

GANTT, P. J. Burgess, J., concurs; Fox, J., having presided on the circuit, took no part in the hearing of this appeal.

OPINION

Page 930

[185 Mo. 641] GANTT, P. J.

This is an appeal from the circuit court of Bollinger...

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