Adams v. Quincy, Omaha & Kansas City Railroad Co.

• Citation: 229 S.W. 790,287 Mo. 535
• Parties: RALPH ADAMS, by Next Friend, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, and WILLIAM G. McADOO, Director General of Railroads, Appellants
• Decision Date: 09 April 1921
• Court: United States State Supreme Court of Missouri

229 S.W. 790

287 Mo. 535

RALPH ADAMS, by Next Friend, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, and WILLIAM G. McADOO, Director General of Railroads, Appellants

Supreme Court of Missouri, First Division

April 9, 1921

Appeal from Grundy Circuit Court. -- Hon. L. B. Woods, Judge.

Reversed and remanded.

Hall & Hall and J. G. Trimble for appellants.

(1) All the errors assigned affecting the defendant railroad company may be summed into one, the judgment must be reversed as to that defendant because this court will take judicial notice of the proclamations of the President and orders of the Director General as well as the Federal Control Act and the Transportation Act. These show the defendant railroad company was not operating the road at the time of the injury to plaintiff October 28, 1918, and, therefore, no judgment can be entered against it. Nor. Pac. Ry. Co. v. State, 250 U.S. 148. Kersten v. Hines, 223 S.W. 592. Cravens v. Hines, 218 S.W. 912. The practice seems to be to reverse the judgment as to the defendant railroad company and deal with the judgment against the Director General of Railroads as if he had been the only party to the action from the beginning. That course would not be proper in this case, as we think the allegations show the Director General is made a party at his own order (not because interested), that "defendants" jointly owned and operated the road and that plaintiff was a joint employee having been made solely to prejudice the jury, defendant Hines is entitled to a reversal of the judgment, regardless of any other errors in the case. (2) The court committed error in refusing to sustain the objection to the introduction of any evidence and in refusing to sustain defendant Hines' motion in arrest. (a) The third paragraph of plaintiff's petition (p. 2) shows that the Director General was made a party defendant "at his own order" and not because plaintiff desired a judgment against him. The further allegations of the petition use the plural "defendants" in charging ownership and operation of the railroad and employment of the plaintiff. The court should have taken judicial notice of the fact the government was not in partnership with the railroad company in the ownership and operation of the road. As a general rule misjoinder of parties defendant is not cause for reversing the judgment as to all defendants, if there be one who is singly liable. In this case the general practice should not be followed. (b) The petition alleges that the negligent acts of James and the defendants "caused a piece of metal to break off of said rail, said spike, and said spike-maul." In this allegation there is a charge of joint negligence on the part of James and the joint defendants and that that negligence caused a piece of metal to break off of three different things -- an impossibility. There is no charge of a specific defect, and, therefore, no cause of action is stated against either defendant or both of them jointly. The objection to the introduction of any testimony should have been sustained. Failing in that the court should have sustained motion in arrest of judgment because the petition does not state facts sufficient to constitute a cause of action against Hines jointly or singly. (3) The court erred in permitting plaintiff and the witness Barlow to testify as experts. (4) Instruction No. 1 given on behalf of the plaintiff is erroneous. There is no causal connection shown between the position James was in when he undertook to comply with plaintiff's request and the accident. Instructions should be within the pleadings and also within the evidence. It is error to give an instruction on a theory not made in the petition or on one which there is no evidence to support. Hufft v. Railroad, 222 Mo 286; Degonia v. Railroad, 224 Mo. 564; Moellman v. Lumber Co., 134 Mo.App. 485. There was no evidence in this case upon which to submit to the jury the question that deceased had not been guilty of contributory negligence; so that the instruction so submitting that question was not only beyond the purview of the proven facts but was confusing and misleading." (5) Instruction No. 2 is erroneous. (a) It singles out the railroad company as being the only defendant who might raise the question of assumption of risk. (b) It was not authorized under the evidence. It tells the jury that the plaintiff could not be held to have assumed the risk of defects and dangers in the "method of doing the work" and the method in which James used the spike-maul when there was no evidence whatever that there was any negligence on the part of the defendant in establishing the method of doing the work. It also instructed the jury that the plaintiff did not have to use extraordinary vigilance to discover defects and dangers in the method of doing the work but "had a right to believe that the defendants were doing their duty with reference to the method of doing the work" when he had no knowledge to the contrary. There was no evidence whatever to indicate that the defendant was guilty of any negligence in regard to the method of doing the work. (6) The verdict is so excessive as to permit only one conclusion and that is that it is the result of prejudice and passion. A remittitur will not cure the wrong done. Neff v. City of Cameron, 213 Mo. 350; Wellman v. St. Ry., 219 Mo. 126; Sexton v. Railroad, 245 Mo. 254; Johnson v. Brick Co., 205 S.W. 615; Brady v. Railway, 206 Mo. 509.

Platt Hubbell and Geo. H. Hubbell for respondent.

(1) Judgment should be affirmed against the legally substituted defendant. Kersten v. Hines, 223 S.W. 586; Section 206 (a) Transportation Act, 1920. The Missouri statute is liberal on the subject of amendments at any stage of the proceedings. R. S. 1909, sec. 1851. At the time this case was tried, there was high authority for joining the railroad company as a party defendant. 88 Cent. L. J. 160; Mo. Pac. R. Co. v. Ault, 216 S.W. 3; Ft. Worth Ry. Co. v. Thompson, 222 S.W. 289. The joinder of an unnecessary party as a defendant is no ground for reversal. Halasy v. Halasy, 256 Mo. 327, 330. There is nothing in this record to take this case out of the general rule already announced in Kersten v. Hines, 223 S.W. 586. There is no allegation that defendants jointly owned anything. "Jointly" does not appear in the petition. (2) Plaintiff wanted and secured a judgment against the Director General of Railroads. There is no allegation of partnership. The phrase "at his own order" is merely for the purpose of showing the capacity in which the Director General is sued -- and recognizes orders made by him. Plaintiff's petition does not charge an impossibility. Plaintiff had a right to charge that a piece of metal broke off of three different objects -- and proof that a piece of metal broke off of one or two objects, is within the allegations of the petition. And, from such a blow as was struck by James, it was highly possible that a piece of metal might have broken off of three different objects. (3) The cross-examination of Fred Barlow proves sufficient experience to qualify him to give expert testimony, as to the proper method of driving such a spike. No rule of evidence was violated in any of the expert evidence. Meily v. Ry. Co., 215 Mo. 567; Same case, 114 S.W. 1013; Wilder v. Great Cereal Co., 109 N.W. 791, 134 Iowa 451; Combs v. Construction Co., 205 Mo. 391. (4) Plaintiff had a right to testify to where he expected James to stand while striking the spike. Pringle v. Ry. Co., 21 N.W. 108, 64 Iowa 613. (5) All the facts hypothesized in plaintiff's first instruction, are proved by the evidence. All the facts hypothesized in plaintiff's first instruction are alleged in the petition. To authorize a recovery by the plaintiff, all the facts alleged need not be proved. 4 A. L. R. 979. (6) Proximate cause of an injury of death may be proved by circumstantial evidence. Colorado & So. Ry. v. Rowe, 224 S.W. 932; San Pedro, L. A. & S. L. R. Co. v. Brown, 258 F. 806. (7) James was negligent in striking with his spike-maul while standing on the north side of the rail, and before the nipper had applied his bar and put his weight onto the bar. Siegemund v. Chicago, M. & St. P. Ry. Co., 229 F. 956; Hutson v. Mo. Pac. Ry. Co., 50 Mo.App. 300; Swain v. Railway Co., 174 N.W. 386; Oestreich v. Railway Co., 167 N.W. 1032. "Railroad Company" is a generic and group name applicable to those against whom the plaintiff is prosecuting his case -- as shown by the context of this instruction. Plaintiff's second instruction complies with the most technical rulings of the Supreme Court of the United States on the subject of assumption of risk. Pryor v. Williams, 41 S.Ct. 36; Texas & P. R. Co. v. Swearingen, 49 L.Ed. 388, 196 U.S. 51; Chicago & E. R. Co. v. Ponn, 191 F. 682; Williams v. Bunker Hill, etc., Co., 200 F. 211; Fidelity Trust Co. v. Wisconsin I. & W. W., 129 N.W. 615; Dolese Bros. Co. v. Kahl, 203 F. 627; C. R. I. & P. Ry. Co. v. De Vore, 143 P. 864; 43 Okla, 534; 17 Corp. Jur. 1116; Bower v. V. & N. W. R. Co. 148 N.W. 145, 96 Neb. 419.

SMALL, C. Brown and Ragland, CC., concur.

OPINION

SMALL, C.

Appeal from the Circuit Court of Grundy County. Suit for personal injuries. The railroad company and William G. McAdoo, Director General of Railroads, were defendants when the petition was filed November 19, 1918.

The petition alleged that on October 28, 1918, plaintiff was in the employ of defendants as a common laborer with a section-crew engaged in repairing the tracks of defendants at Knox City, Missouri. That he, on that date, lost his left eye, because one James, a fellow-servant working with him attempted to drive a spike into a tie and "negligently struck at said spike and negligently struck said spike and rail with said maul," and "thereby caused...