Devlin v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1885
• Citation: 87 Mo. 545
• Parties: DEVLIN v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

87 Mo. 545

DEVLIN

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Ray Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

W. H. Blodgett and G. B. Burnett for appellant.

(1) The court erred in overruling defendant's demurrer to plaintiff's evidence. Wood on Master and Servant, 680, 681, 682; Sherman and Redfield on Negligence, sec. 94; Pierce on Railroads, 379; Thompson on Negligence, 1008; Kelley v. Silver Spring Co., 12 R. I. 112; Davis v. D. & M. Ry. Co., 20 Mich. 105; I. & C. Ry. Co. v. Love, 10 Ind. 556; Gibson v. Erie Ry. Co., 63 N. Y. 449; C. & A. Ry. Co. v. Monroe, 85 Ill. 25; Way v. Ill. Cent. Ry. Co., 40 Ia. 341; Devitt v. Pacific Ry. Co., 50 Mo. 302; Cummings v. Collins, 61 Id. 520; Keegan v. Kavenaugh, 62 Id. 232; Hulett v. St. L., K. C. & N. Ry. Co., 67 Id. 239; Smith v. St. L., K. C. & N. Ry. Co., 69 Id. 32; Cagney v. H. &. St. Joe Ry. Co., Id. 416; Porter v. Same, 71 Id. 66. (2) The court admitted improper evidence on behalf of plaintiff against the objection of defendant. Greenleaf's Ev. secs. 113, 114; Story on Agency, secs. 134, 137; Griffin v. Ry. Co., 26 Ga. 111; Robinson v. Ry. Co., 7 Gray, 92; Moore v. Meacham, 10 N. Y. 207; Rogers v. McCune, 19 Mo. 558; McDermott v. H. & St. Joe Ry. Co., 73 Id. 516; Adams v. Same, 74 Id. 553; Aldridge v. Furnace Co., 78 Id. 559. (3) The court gave improper instructions at the instance of plaintiff and of its own motion. See authorities, supra. (4) The court refused to give proper instructions asked by defendant. Authorities, supra.

Shotwell & Ball for respondent.

(1) The court did not err in overruling appellant's demurrer to the evidence. It is only in a case, where there is no evidence that such an instruction can be sustained. Routsong v. Ry., 45 Mo. 236; Chambers v. McGovern, 33 Mo. 202; McKown v. Craig, 39 Mo. 156; McFarland v. Bellows, 49 Mo. 311. (2) The question of defendant's negligence and the contributive negligence of the plaintiff was for the jury to determine from all the evidence in the case. 2 Thompson on Negligence, 1012; Porter v. Ry., 60 Mo. 160; Mehan v. Ry., 73 N. Y. 585. (3) It was not the duty of plaintiff, nor did he have the opportunity 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 employers had furnished him an ordinary safe track on which to run; therefore, the court committed no error in giving all of plaintiff's instructions. Porter v. Ry., 71 Mo. 66; Snow v. Railroad, 8 Allen, 441; Seaver v. Boston & M. Railroad, 14 Gray, 466; Gibson v. Pa. Railroad, 46 Mo. 163; Brothers v. Carter, 52 Mo. 372; Porter v. H. & St. Joe Railroad, 60 Mo. 160; Dale v. St. L., K. C. & N. Railroad, 63 Mo. 455-459. (4) It was defendant's duty to provide plaintiff, as its servant, a good, safe and properly constructed track, 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. Kennedy v. N. M. Railroad, 36 Mo. 351; Lewis v. St. L. & I. M. Railroad, 59 Mo. 495; Keegan v. Kavanaugh, 62 Mo. 232; Whalen v. Centenary Church, 62 Mo. 326; Cayzer v. Taylor, 10 Gray, 274; Porter v. H. & St. Joe Railroad, 71 Mo. 66; Same v. Same, 60 Mo. 160; Ryan v. Fowler, 24 N. Y. 410. (5) If the agents of defendant, whose duty it was to keep the track in repair, knew of its defects and dangerous condition, the knowledge of such agents was the knowledge of defendant, and the court was right in overruling defendant's objections to the evidence. Harper v. St. L. Railroad, 47 Mo. 560; Brothers v. Carter, 52 Mo. 372; Lucio v. St. L. & I. M. Railroad, 59 Mo. 507. (6) The statements of an agent while in the employ of his principal, and engaged in the transaction of his business, bind the principal. Authorities, supra. (7) The instructions given for defendant covered the entire law of the case on the part of the defendant, and the others were properly refused. Authorities, supra.

BLACK, J.

The plaintiff was employed by the defendant as locomotive engineer on the branch road from St. Joseph to Lexington Junction. On the thirteenth of February, 1881, he and Valentine were ordered out from St. Joseph to clear the track of snow. Valentine was in front with his engine, next a coal car, behind that a caboose and plaintiff with his engine, all connected forming a solid train. When three or four miles out from St. Joseph Valentine's engine broke a rail, in consequence of which the coal car and rear engine were thrown off the track. The plaintiff's engine rolled down an embankment and he was injured and to some extent permanently disabled.

The evidence shows that different kinds of rails were used on the road; those on the section in question were old and well worn. The section foreman says the condition of the road was generally bad at his section; that he had often asked for iron and got some old taken up from other places to patch up with, but got no new iron. There was also evidence tending to show that the rail which broke was splintered and battered. Plaintiff had been on the road since 1870, first as fireman, and for five years before the accident had run an engine over the road once and often twice a day. He says the condition of the road was good as far as he knew; that he had frequently run over broken rails, could not say how often, mostly in the winter time; when going over the road he could tell when on the different kinds of iron.

1. The testimony of the foreman of the round house as to the condition of the road, so far as he spoke of his own knowledge, was competent, but he was also allowed to say that the section foreman stated time and again that the road was in bad condition; that he had applied to the roadmaster for new materials, etc. It does not appear that these statements made by the section foreman to the foreman of the round house were made while the former was transacting the business of defendant. What the agent said while representing the principal and while the act was in progress was a part of the res gestae and admissible. Such declarations of the agent should, however, be coincident with the events to which they relate. If a narrative of what has passed they should be excluded. Adams v. Railroad, 74 Mo. 554; Packet Co. v. Clough, 20 Wall. 541; Greenleaf's Evid., secs. 113-14; Story on Agency, sec. 134; Whart. Law of Evidence, sec. 1174. The statements, therefore, should have been excluded.

2. The court overruled a demurrer to the evidence and also refused a number of instructions asked by the defendant, of which action error is assigned. With respect to these rulings the defendant contends, (1) that as the condition of the road was generally bad and plaintiff had been over it so often, he was bound to know its real and true condition and his knowledge in that behalf was not a question for the jury; and (2) having continued to work upon the road, he took upon himself all the dangers arising from the bad condition of the road, and that the instructions need not submit any question of contributory negligence on his part to the jury.

It does not follow, because the rails were old, light and well worn in places, to the knowledge of plaintiff, that he was bound to pursue the inquiry and determine for himself and at his own peril whether the road was, or was not fit for use. The defendant had its employes, whose special duty it was to keep the track in repair; they were replacing the old rails with new ones on parts of the road. The road was in general use. All this would indicate to the mind of any one that the officers regarded the road as fit for use, and upon their superior judgment the plaintiff had a right to rely, to some extent, at least. The servant is bound to take notice of those dangerous defects of which he has knowledge and which are obvious to his senses, but he is not bound to investigate for himself a department of work with which he has nothing to do, and set up his judgment against that of his master. Porter v. Railroad, 60 Mo. 160; Dale v. Railroad, 63 Mo. 455; Porter v. Railroad, 71 Mo. 66. Nor does he in all cases assume the risks arising from all defects or want of repair of which he may have knowledge. In Wood on Master & Servant, section 327, it is said: “The servant, although he may know that the instrumentalities of the business are not in good repair or condition, is not thereby necessarily chargeable with negligence in remaining in the master's employ and using them, unless real danger therefrom is apparent.”

Here the road was open for daily use, and it was a question of fact, whether, under all the circumstances, the plaintiff was guilty of contributory negligence. He was not bound to quit the service, nor did he assume all risks from want of repair, unless the track was so far out of repair, to his knowledge, that it would be necessarily dangerous to the mind of a prudent person to run an engine over it. This is in accord with common fairness and the daily conduct of master and servants, and has, we think, the support of the following authorities: Flynn v. Railroad, 78 Mo. 195; Conroy v. Iron Works, 62 Mo. 39; Stoddard v. Railroad, 65 Mo. 521; Snow v. Railroad, 8 Allen, 441; Patterson v. Railroad, 76 Pa. St. 393; Hawley v. Railroad, 82 N, Y. 370; Huddleston v. Lowell Machine Shops, 106 Mass. 282; Ford v. Railroad, 110 Mass. 240; Lawless v. Railroad Co., 136 Mass. 1.

The petition is extravagant in its averments. It...