88 S.W. 679 (Mo. 1905), Smith v. Fordyce

Citation:88 S.W. 679, 190 Mo. 1
Opinion Judge:GANTT, J.
Party Name:SMITH v. FORDYCE et al., Receivers, Appellants
Attorney:S. W. Moore, Cyrus Krane and J. W. McAntire for appellant. Howard Gray and Cole & Burnett for respondent.
Judge Panel:GANTT, J. Fox, J., concurs; Burgess, P. J., not having heard the argument takes no part in the decision.
Case Date:June 20, 1905
Court:Supreme Court of Missouri
 
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Page 679

88 S.W. 679 (Mo. 1905)

190 Mo. 1

SMITH

v.

FORDYCE et al., Receivers, Appellants

Supreme Court of Missouri, Second Division

June 20, 1905

Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.

Affirmed.

S. W. Moore, Cyrus Krane and J. W. McAntire for appellant.

(1) The court erred in overruling defendants' demurrer to the evidence. The case alleged was not proved. Waldheir v. Ry., 71 Mo. 514; Price v. Railroad, 72 Mo. 416; Ely v. Railroad, 77 Mo. 34; Harty v. Railroad, 95 Mo. 365; Buffington v. Railroad, 64 Mo. 246; Yarnell v. Railroad, 113 Mo. 570; Weil v. Posten, 77 Mo. 287; Jackson v. Hardin, 83 Mo. 187; Current v. Railroad, 86 Mo. 66; Nall v. Railroad, 97 Mo. 75; Crawford v. Aultman, 139 Mo. 271; Raming v. Railroad, 157 Mo. 507; Hite v. Railroad, 130 Mo. 136; McManamee v. Railroad, 135 Mo. 440; Houston v. Tyler, 140 Mo. 263; McCarty v. Hotel Co., 144 Mo. 402; Bartley v. Railroad, 148 Mo. 139; Feary v. Railroad, 162 Mo. 75. 2. The absence of a derailer was not the cause of the injury. Fredericks v. Railroad, 157 Pa. 103; Harlan v. Railroad, 65 Mo. 25; Stepp v. Railroad, 85 Mo. 233; Stanley v. Railroad, 114 Mo. 624. 3. The absence of the derailer under the pleadings and evidence in this case furnished no ground of recovery. (a) The petition did not authorize it. Hogan v. Railroad, 150 Mo. 49. (b) The master is not compelled to furnish any particular kind of appliances. 1 Labatt on Master and Servant, p. 84, sec. 35; Devitt v. Railroad, 50 Mo. 305; Tabler v. Railroad, 93 Mo. 85; Muirhead v. Railroad, 103 Mo. 251; Bohn v. Railroad, 106 Mo. 433; O'Hare v. Railroad, 95 Mo. 678; Friel v. Railroad, 115 Mo. 507; Bender v. Railroad, 137 Mo. 250; Glover v. Meinrath, 193 Mo. 304. (c) Because a derailer might have made the track safer was not proof that the appliances furnished thereon were not reasonably safe. Smith v. Railroad, 69 Mo. 39; Muirhead v. Railroad, 19 Mo.App. 644; Winkler v. Basket & Box Co., 137 Mo. 400; Berning v. Medart, 56 Mo.App. 449. 4. Plaintiff assumed the risks and the court should have so held as a matter of law. 1 Labatt on Master and Servant, p. 94; Smith v. Railroad, 69 Mo. 38; Jackson v. Railroad, 104 Mo. 458; Alcorn v. Railroad, 108 Mo. 97; Bradley v. Railroad, 138 Mo. 303; Glover v. Meinrath, 133 Mo. 305; Bender v. Railroad, 137 Mo. 250; Bohn v. Railroad, 106 Mo. 434; Williams v. Railroad, 119 Mo. 324; Epperson v. Postal Tel. Co., 155 Mo. 346; Minnier v. Railroad, 167 Mo. 113. 5. The injury was attributable solely to the acts of third parties, and under the conceded facts defendants were not liable. Flint v. Railroad, 91 Am. & Eng. R. R. Cases 249; Fredericks v. Railroad, 157 Pa. 123, 22 L.R.A. 306; Marrs v. D. & H. Canal Co., 54 Hun 625. (2) At the close of all the evidence the court erred in not peremptorily instructing the jury to return a verdict for defendants, because defendants could not have reasonably apprehended the occurrence. Beasley v. Transfer Co., 148 Mo. 419; O'Malley v. Railroad, 113 Mo. 329; Brewing Association v. Talbot, 141 Mo. 683; Fuchs v. City, 167 Mo. 652; Chandler v. Gas Co., 174 Mo. 328; Holt v. Railroad, 84 Mo.App. 447. (3) Plaintiff's instruction 1 is erroneous. Chitty v. Railroad, 148 Mo. 73; Kenney v. Railroad, 70 Mo. 255; Melvin v. Railroad, 80 Mo. 106; Wolfe v. Lodge, 106 Mo. 686; Jacquin v. Railroad, 57 Mo.App. 355; McMahan v. Express Co., 132 Mo. 649. (4) Plaintiff's fifth instruction on the measure of damages was wrong, and the court erred in giving it, for the reason that it did not state the elements of damage. Hawes v. Stock Yards Co., 103 Mo. 66; McGowan v. Steel Co., 109 Mo. 531; Brannock v. Elmore, 114 Mo. 65; Badgley v. St. Louis, 149 Mo. 144.

Howard Gray and Cole & Burnett for respondent.

(1) The court did not err in overruling defendants' demurrer to the evidence. Jones v. Railroad, 178 Mo. 528. The case alleged was proven. In any event, the most that can be claimed is a mere variance and not a total failure of evidence to support the case. In such case, the defendants waived the same by not complying with the statute. R.S. 1899, sec. 655; Real Estate Co. v. Realty Co., 159 Mo. 562; Brigges v. Munchon, 56 Mo. 467; Ely v. Porter, 58 Mo. 158; Turner v. Railroad, 51 Mo. 501; Meyer v. Chambers, 68 Mo. 626. If a party fails to avail himself of said section in the trial court, it is too late to complain in the appellate court. Real Estate Co. v. Realty Co., supra; Fischer v. Max, 49 Mo. 404; Brown v. Railroad, 50 Mo. 461; Bank v. Leyser, 116 Mo. 51; Ridenhour v. Railroad, 102 Mo. 270. A failure of proof applies to a case where the allegations of the petition or answer are unproven in their entire scope or meaning, and variance, as provided in said section 655, has reference to discrepancies between the issues as made by the pleadings and the evidence in support of them. Rumbolz v. Bennett, 86 Mo.App. 174. (2) Appellants say "absence of a derailer was not the cause of the injury." To this respondent replied, Had a derailing switch been at the junction of the switch with the main line, the accident would not have happened. Bassett v. St. Joseph, 53 Mo. 290; Lore v. Mfg. Co., 160 Mo. 608; Straub v. St. Louis, 175 Mo. 413; Benjamin v. Railroad, 133 Mo. 274; Brash v. St. Louis, 161 Mo. 433. The court did not authorize a recovery unless the jury found from all the surrounding circumstances that a derailing switch should have been used by defendants at this point. The evidence, therefore, showing that men unskilled in the handling of cars were in the habit of pushing these cars from place to place on this switch, was admissible for the purpose of showing the necessity of the defendants using some care to prevent a car escaping onto the main track in case it escaped from such persons. It was gross negligence for the defendants to leave this car standing on this grade with the brake so it could not be used and nothing to prevent it from rolling down the switch if these men attempted to move it, or in case any other person kicked the block of wood from under it. Jones v. Railroad, 178 Mo. 528. (3) It is true the master is not compelled to furnish any particular kind of appliances, and there is nothing in the record in this case which shows that the trial court so held. The question of defendants' negligence in not furnishing the derailer or some other kind of device to prevent accidents of this kind was properly submitted to the jury as to whether it constituted negligence or not. (4) Third parties were in no wise responsible for the failure of defendants to maintain the derailing switch or other means to prevent cars from escaping onto the main track. Waller v. Railroad, 59 Mo.App. 410. (5) Appellants cannot complain of the action of the court in giving the instruction for plaintiff in relation to damages, as they asked no instructions on this question, and an instruction in behalf of plaintiff was good as far as it went. Browning v. Railroad, 124 Mo. 55; Wheeler v. Bowles, 163 Mo. 398; Longan v. Weltmer, 79 S.W. 655; Matthews v. Railroad, 142 Mo. 645; Minter v. Bradstreet Co., 174 Mo. 444; Harmon v. Donohoe, 153 Mo. 263; Robertson v. Railroad, 152 Mo. 382; Geismann v. Electric Co., 173 Mo. 654; Barth v. Railroad, 142 Mo. 535.

GANTT, J. Fox, J., concurs; Burgess, P. J., not having heard the argument takes no part in the decision.

OPINION

Page 680

[190 Mo. 7] GANTT, J.

This is an action commenced in the circuit court of Jasper county, Missouri, against the defendants as receivers for the Kansas City, Pittsburg & Gulf Railroad Company, to recover damages for injuries received by the plaintiff while in their employ as a car repairer.

The petition alleges the incorporation of the defendants as a railroad company, the appointment of the defendants Fordyce and Withers as receivers by the circuit court of the United States for the western district of Missouri, their qualification as such and their possession of the said railroad, its engines and cars at the times mentioned in the petition; that while said receivers were operating said railroad, plaintiff was in their employment as a car repairer, and as such it was his duty to go about the freight and passenger cars of the defendants and repair the same along the line of said railroad; that Joplin was and is a station on the line of said railroad, and near said city and station there was a switch leading from the main line of said road to a lead and zinc mine known as the Bankers Mine; that the said receivers were using said switch under the order of said court to haul cars of coal and other property out to said mine, and for other purposes; that from the place where said cars were left at said mine to be unloaded, to the main line of the road, was down grade so that cars left standing on said switch at said mine, unless fastened in some way, would run down to the main line track and other switches with great force and speed, thereby placing plaintiff while employed in his work of repairing cars on said track in great danger, and placing all other employees of the defendants and passengers on said road in great danger from said cars starting from said point on said switch and running down and out upon the main line and switches with said great force and speed; that it was the duty of said receivers [190 Mo. 8] to have placed at or near the intersection of said switch with the main line, what is commonly known as a derailing switch or some other means of obstruction so that if cars did escape at said switch

Page 681

at said mine and roll down to the main line, they would not run out on the main line, but would be stopped or derailed; that the defendants negligently failed to take any precaution to prevent said cars from starting when left at said mine and running down said grade and out on to the main line and the other switches and spurs of said...

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