Crane v. Missouri Pacific Ry. Co.

Decision Date31 October 1885
Citation87 Mo. 588
PartiesCRANE v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Pettis Circuit Court.--HON. JNO. P. STROTHER, Judge.

AFFIRMED.

W. S. Shirk and T. G. Portis for appellant.

(1) Plaintiff's petition does not state facts sufficient to constitute a cause of action. Hulett v. Railroad Co., 67 Mo. 239; Mich. Central Railroad Co. v. Smithson, 45 Mich. 212; I., B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; Wood on Master and Servant, p. 754, sec. 382; Id., p. 791, sec. 414; Thompson on Neg., p. 982, sec. 11; Id., p. 1050, sec. 47; Whart. on Neg. (2 Ed.) sec. 243 a; Toledo, etc., R. R. Co. v. Black, 88 Ill. 112; Baldwin v. Chicago, etc., R. R. Co., 50 Iowa, 680; Railroad Co. v. Troesch, 68 Ill. 545; Wonder v. Railroad Co., 32 Md. 411; Sherman and Redf. on Neg., p. 115, sec. 87; Id., p. 128, sec. 99; McGinnis v. C. S. B. Co., 8 Am. and Eng. R. R. Cases, 135; Central R. R. Co. v. Kenny, 64 Ga. 100; Gibson v. P. R. R. Co., 46 Mo. 163; Waldhier v. H. & St. J. R. R. Co., 71 Mo. 514; Elliott v. St. L., I. M. & S. R. R. Co., 67 Mo. 272; Scott et al. v. Robards, 67 Mo. 289; Jones v. Tuller, 38 Mo. 366; Current v. Mo. Pac. R. R. Co., 86 Mo. 62. (2) The defendant's instruction offered at the close of plaintiff's case should have been given. ( a) Because the petition does not state facts sufficient to constitute a cause of action, and is fatally defective. ( b) Because the plaintiff's evidence failed to establish a cause of action against defendant. Authorities cited, supra. ( c) Because plaintiff's evidence clearly shows that he was guilty of contributory negligence, which was the direct cause of his injury. Wood on Master and Servant, p. 746, sec. 372; Id., p. 754, sec. 382; Harlan v. St. L., K. C. & N. R. R. Co., 64 Mo. 480; Fleecher v. A. & P. R. R. Co., 64 Mo. 484; Powell v. Mo. Pac. R. R. Co., 76 Mo. 80, and authorities cited, supra. (3) The court erred in permitting the plaintiff's witnesses to testify, against the objections of defendant, as to changes made in the construction of the “Baldwin locomotive cars,” use of same, etc., subsequent to the plaintiff's injury. (4) The court erred in giving plaintiff's instructions; they do not embody correct propositions of law, and if they did, are not authorized by the pleadings or justified by the evidence.

W. W. Snoddy for respondent.

(1) The petition is substantially good, and states a good cause of action at common law, as will be seen by the court upon an inspection. It does show that the respondent did not know the danger in the car described, and that the appellant did know, and could have known, by the exercise of reasonable diligence. The petition is certainly good after verdict that every fact was proven necessary to sustain it, although the same may not have been technically set forth in the petition. R. S., sec. 3882; Bowie v. Kansas City, 51 Mo. 454; Cowles v. Richmond, etc., R. R. Co., 12 Cent. Law Jour. 546. All the instructions in the cause show that the instructions and evidence were in harmony with the petition. The petition showed that an injury had been received by the respondent without fault or negligence on his part, on account of negligence on the part of the appellant. (2) The railroad company was bound to provide safe machinery and appliances for its employes. The company, according to the evidence, either knew, or should have known, of the dangerous character of the appliance by which plaintiff was hurt, and is liable for the injuries he sustained. Lewis v. Railroad Co., 59 Mo. 495; Harlan v. Railroad Co., 65 Mo. 22; Couden v. Railroad Co., 78 Mo. 567; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Dowling v. Gerard B. Allen & Co., 74 Mo. 13; Swigert v. Railroad Co., 75 Mo. 475; Nagel v. Railroad Co., 75 Mo. 653; Cagney v. Railroad Co., 69 Mo. 416.

NORTON, J.

This cause is before us on defendant's appeal from a judgment rendered for plaintiff by the circuit court of Pettis county, and as the first and principal point presented is as to the sufficiency of the petition, it is here inserted, and, omitting the formal part of it, it is as follows:

Plaintiff, for cause of action against the said defendant, states that on the said seventeenth day of November, 1879, he was in the employ of the defendant, in its yards at Sedalia, in said county and state. The duties of his employment were to ride cars, catch them up, couple them, etc., when trains arrived at said yards. That on the said seventeenth day of November, 1879, in the morning, while making up a freight train, and without any fault or negligence on his part, in attempting to couple together two cars in making up said train, his arm was caught in the coupling apparatus and between the said two cars, whereby the elbow was crushed and injured, the ulna broken, the flesh and muscles of said arm mangled and bruised, causing him great pain and agony, and most excruciating suffering for several months, causing paralysis of said arm, and permanently disabling the same so that he is now, and ever will be, unable to use said arm, and was, and is, thereby compelled to abandon forever his ordinary avocations.

Plaintiff states that the cause of the injury aforesaid was the carelessness and negligence of the said defendant in failing, neglecting and refusing to provide plaintiff with safe and proper appliances, and reasonably secure and safe appliances and machinery with which to perform the duties of his employment. That on the occasion of the injury, the defendant, not regarding its duties, unlawfully, negligently, and knowingly, required plaintiff to couple what was known as a “Baldwin locomotive car,” to a “Missouri Pacific freight car.” That at the time plaintiff was required to make the coupling of said two cars, said cars, known as the “Baldwin locomotive cars,” had generally been abandoned on railroads as dangerous to be used and coupled with other cars of modern construction, and especially had they long been unused in connection with Missouri Pacific cars, and the one used at the time of plaintiff's injury was dangerous to the life and limbs of those whose duty it was to couple it with a Missouri Pacific car, because of the want of drawheads properly constructed, there being no drawheads and timbers, deadwoods, etc., to conform to the construction of those on the Missouri Pacific car, and on that account when the two cars came together, plaintiff's arm was caught and injured as aforesaid. Plaintiff states that the said injuries were occasioned by reason of the negligent, careless and unlawful act of defendant in permitting and requiring plaintiff to perform the duties of his employment with the dangerous and unsafe and improper appliances and machinery aforesaid. Wherefore, plaintiff says, by reason of the premises, he was, and is, damaged in the sum of ten thousand dollars, for which he asks judgment.”

I do not understand counsel for appellant as controverting that if defendant furnished a car to be coupled by plaintiff, which it knew, or might have known, by the exercise of ordinary care, was not reasonably safe, but was unusually dangerous because of the construction of its drawheads, and that plaintiff, without fault on his part, and in ignorance of its dangerous character, was injured by reason thereof, that he could recover damages for such injury. But the contention is that the case stated in the petition does not come within the operation of the above principle, and the first specific objection made to the petition is that it does not aver either that plaintiff did not know, or could not have known, by the exercise of ordinary care, the dangerous and defective construction of the car, and that for the lack of such averment, it is fatally defective. It may be stated as a well recognized rule of pleading, that a plaintiff need only state in his petition what he is bound to prove to make out his case, to which rule efficacy was given in the case of State v. Edmundson, 64 Mo. 398. Shearman and Redfield, in treating of the liability of masters to servants, in section 99, page 128, state the rule thus: “In actions brought by servants against their masters, the burden of proof as to the master's knowledge, or culpability in lacking knowledge of the defect which led to the injury, whether in the character of a fellow servant, or in the quality of materials used, rests upon the plaintiff. But the plaintiff having proved the fault of the master in this respect, the burden of proving that the plaintiff also knew of such defect, and commenced or continued his service with such knowledge, rests upon the defendant. This fact being proved, it is then for the plaintiff to show, if he can, that defendant induced him to continue the work by promising to remedy the defect.”

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