O'Hare v. Chicago & A. R. Co.

Citation95 Mo. 662,9 S.W. 23
CourtUnited States State Supreme Court of Missouri
Decision Date18 June 1888
PartiesO'HARE v. CHICAGO & A. R. CO.

In such action, the complaint charging that the accident was caused by the dangerous character of a coupler on a car of defendant's train, and of the negligence of the engineer in charge of the train, there was the testimony of some witnesses that the car in question was of a kind well known to be dangerous, there being no room about the draw-head for handling the coupling-pin with safety, whereas with other cars it was different. These cars were little used in the west, plaintiff testifying that this was the first he had seen while in defendant's service. On the other hand there was evidence that all the roads carried more or less of the cars. Plaintiff's evidence as to the competency of the engineer was that he had been suspended for carelessness in allowing an incompetent person, not an employe, to run his engine through the yard whereby an accident resulted; that he bore the reputation of being reckless and rough in his manner of handling cars. A number of defendant's witnesses testified that the engineer was competent. It was shown that the accident was caused by a car being discovered to be detached while the train was in motion, at the rate of 10 miles an hour, and while plaintiff was coupling it, the engineer, without warning, reversed the engine, thus bringing the cars together suddenly, and crushing plaintiff's hand, it being unnecessary and contrary to the custom of careful engineers to check a train in that manner. The engineer testified that he did not reverse the engine, and was only running at about five or six miles an hour. Plaintiff's attempt to couple the car was in the necessary discharge of his duty. He did not know what engineer was in charge, and could not, owing to a curve, see the engine when he discovered the car to be uncoupled. Held, that the case should be submitted to the jury, and that instructions in the nature of a demurrer to evidence were properly refused.

3. SAME — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

On such evidence instructions, in substance, that, before the jury could return a verdict for plaintiff, they must find that he was not injured by his own negligence; that the engineer was incompetent, of which defendant had notice; that the engineer was guilty of negligence in reversing his engine without warning; and that such negligence was the cause of the injury, — are proper.

SHERWOOD, J., dissenting.

Appeal from circuit court, Jackson county; FRANCIS M. BLACK, Judge.

Action for personal injuries by Andrew O'Hare against Chicago & Alton Railroad Company. Verdict for plaintiff, and damages assessed at $6,000, and judgment thereon. Defendant appealed.

Gates & Wallace, for appellant. Gage, Ladd & Small, for respondent.

NORTON, C. J.

Plaintiff recovered judgment for damages for personal injuries alleged to have been occasioned by the negligence of defendant, from which judgment defendant has appealed. The petition substantially sets forth as the cause of action, the following, viz.: That plaintiff was an employe of defendant, as a yard-man, in Kansas City, and that on the 18th March, 1883, defendant was engaged in moving from its yards and depot, in the western part of the city, a train containing an unusually large number of cars, and for that purpose was using an engine at the head of said train in pulling it, which engine was under the control of Jesse Langer, an engineer, and also another engine at the rear end of said train pushing it; that on account of the length of the train, and the nature of the track and surrounding obstacles, those employed on the hindmost engine could not see those employed on the front engine, or front part of the train, and vice versa; that said Langer, engineer in charge of said front engine, was incompetent, reckless, and negligent and unfit for the position, of which defendant had knowledge; that defendant negligently and carelessly had and used as the rear car of said trains one whose bumpers or dead-woods were so constructed as to greatly enhance the danger of injury to any person coupling, or attempting to couple, the same to any other car or engine. It is further averred that it was the duty of plaintiff to attend said engine in the rear of said train, and do whatever coupling was then required; that as said train was proceeding eastward from said western depot and yards, the said engine became uncoupled, and that it became plaintiff's duty to couple the same to said car, the bumpers of which were constructed as aforesaid; that while he was proceeding to couple the same, in the usual and customary manner, with due care on his part, the said Langer carelessly and negligently, and without any signal or notice being given, reversed said engine at the front of said train and caused said cars to be thrown back suddenly, and with great violence, to the rear, so that plaintiff, having no notice thereof, could not withdraw from between said bumpers and rear engine where he had his right arm for the purpose of making the coupling, and that by means thereof, and the dangerous construction of said car and bumpers, plaintiff's arm was caught between said bumpers and engine, inflicting an injury resulting in the loss of his right hand and a portion of his arm. The answer, after making certain admissions as to defendant being a corporation, etc., denies the averments of the petition on which plaintiff bases his cause of action, and avers substantially that plaintiff's injury was caused by his own negligence. During the trial plaintiff offered W. E. Bridges as a witness, who testified that he was the agent of defendant, and in charge of the freight offices both at Twelfth street and Grand avenue; that he kept a book, containing a letterpress copy of reports of accidents to persons and property; that these reports were then sent to the division superintendent at Slater; that the custom was to make reports to him, which he copied into a book which he produced, and was asked to read in evidence from said book the letter impression copies of certain reports of an accident. This was objected to on the ground that said reports were incompetent and irrelevant, and on the ground that they did not show how the accident occurred, or have any tendency to show any incompetency in running or managing an engine on the part of Langer, and not as being any knowledge to the company. No objection was made to the evidence on the ground that the original report, instead of a copy, should be produced. The objection was properly overruled, inasmuch as the evidence offered tended to show that a collision had occurred between switch-engine 47 and train No. 94, that Langer was engineer of said switch-engine, and trusted it to be run by a non-employe and incompetent engineer, who could not manage it, and hence the collision.

It is next insisted that the court erred in refusing to give an instruction asked by defendant in the nature of a demurrer to the evidence. In passing upon a demurrer to evidence the court is required to make every inference of fact in favor of the party offering the evidence which can reasonably be made. Buesching v. Gas-Light Co., 73 Mo. 219. No controversy in this case is made by the evidence as to the following facts, viz. That the train in question was being moved by an engine at its front, and in charge of Langer, as engineer, and by an engine at the rear end of the train, in charge of one Green, as engineer; that the hindmost car in the train was a U. S. rollingstock car; that while the train was in transit plaintiff discovered that said car was uncoupled, and undertook to couple it, and while doing so received the injury for which he sues. The disputed questions are: Was this U. S. rolling-stock car extra hazardous to plaintiff, whose duty it was to make couplings? Was the engineer Langer, in charge of the front engine, incompetent and reckless, and, if so, did defendant have knowledge of it? Did said Langer negligently, and without warning, reverse his engine, thereby causing said train to be suddenly and violently thrown back while plaintiff was engaged in making the coupling, and causing him to be injured? Was the injury the result of plaintiff's own negligence? As to all these disputed questions it may be said, generally, that the evidence is conflicting, as the following summary of it will show: Witness Mallory testified that the U. S. rolling-stock cars are considered among all railroad men as man-killers, owing to the danger when a man goes to make a coupling; that the draw-heads are constructed in ordinary western cars, so that it gives a man from about 12 to 14 inches room for his hand, but when he goes in between these cars he has no room at all. He has got to get underneath or on top. The western cars do not have these side bumpers. All the western roads have a different kind of car as to coupling. Any car with side bumpers is dangerous. These cars with bumpers are used on some eastern roads. The Hannibal & St. Joseph road had a good many of these kind of cars in use. There is evidence on the other side tending to show that all the roads have carried more or less of these U. S. rolling-stock cars, and received them from other roads; that the Hannibal & St....

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  • Galentine v. Borglum
    • United States
    • Missouri Court of Appeals
    • April 7, 1941
    ...Sinclair Refining Co. (Mo. App.), 92 S.W. (2d) 995, 1000; Brown v. Quercus Lumber Co., 202 Mo. App. 573, 209 S.W. 310; O'Hara v. Chicago & A.R. Co., 95 Mo. 662, 9 S.W. 23. The jury may consider the appearance and conduct of a witness, to aid them in determining whether he has suitable quali......
  • Galentine v. Borglum
    • United States
    • Kansas Court of Appeals
    • April 7, 1941
    ... ... Sinclair Refining Co. (Mo. App.), 92 S.W.2d 995, ... 1000; Brown v. Quercus Lumber Co., 202 Mo.App. 573, ... 209 S.W. 310; O'Hara v. Chicago & A. R. Co., 95 ... Mo. 662, 9 S.W. 23. The jury may consider the appearance and ... conduct of a witness, to aid them in determining whether he ... ...
  • Cathey v. St. Louis & San Francisco Railroad Company
    • United States
    • Missouri Court of Appeals
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    ...the tribunal established by law for the purpose of arriving at the facts. [Wilson v. Board of Education, 63 Mo. 137; O'Hare v. C. & A. R. Co., 95 Mo. 662, 9 S.W. 23; Bender v. St. L. & S. F. R. Co., 137 Mo. 240, S.W. 132; Walsh v. Morse, 80 Mo. 568; Moody v. Deutsch, 85 Mo. 237.] While pass......
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    ...went to make the coupling he did so "without looking to see what kind of car it was." Railroad v. Smithson, 45 Mich. 212. This court, in O'Hare's case, gave no whatever to the constitutional mandate aforesaid, nor to its being necessarily relevant to the issue of negligence. The constitutio......
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