Alcorn v. Chicago & A. R. Co.

• Decision Date: 11 May 1891
• Citation: 16 S.W. 229
• Court: Missouri Supreme Court
• Parties: ALCORN v. CHICAGO & A. R. Co.

16 S.W. 229

ALCORN v. CHICAGO & A. R. Co.

Supreme Court of Missouri, Division No. 1.

May 11, 1891.

INJURIES TO RAILROAD EMPLOYE — DEFECTIVE APPLIANCES — EVIDENCE — REPAIRS.

1. In an action for personal injuries occasioned by plaintiff's being caught between the rails between which the blocking was insufficient while attempting to uncouple moving cars, evidence that the day after the accident a new and sufficient block was placed between the rails at that point is inadmissible.

2. A general objection to testimony that it is "incompetent, irrelevant, and immaterial" is sufficient where the evidence is not admissible for any purpose.

3. Where the answer avers that plaintiff received the injury in consequence of getting between the cars while in motion for the purpose of uncoupling them, contrary to the rules of defendant, the rule prohibiting such acts is admissible in evidence, and it is not necessary to set out the rule in the pleading, under Rev. St. Mo. 1889, §§ 2055, 2060, providing that only the substantive facts shall be stated, and that no party shall be required to state evidence in his pleading.

4. Where a rule prohibiting employes from going between moving cars to make couplings has been in existence for years, and plaintiff has been for several years in defendant's service, and the rule has been extensively distributed among the employes and posted in conspicuous places about the depots, switch-houses, etc., the rule is admissible in evidence, though it is not shown that plaintiff actually knew of its existence.

5. The rule cannot be objected to on the ground that defendant had abandoned it before the accident, unless plaintiff pleads that fact in his reply.

Affirming 14 S. W. Rep. 943.

BLACK, J., dissenting.

On rehearing.

This cause has been reargued. It is an action for damages laid at the sum of $15,000. The main ground upon which the plaintiff relied for recovery was the insufficient blocking of the tracks of the defendant, which was claimed to be the proximate cause of the injury, and that the accident in question occurred while a train of defendant's cars was in motion, and while defendant was in the act of uncoupling one of the cars of such train, his foot being caught between the rails on the track by reason of an insufficient block between the rails, and in consequence being knocked down by that train. The answer was a general denial, as well as a plea of contributory negligence, alleging that plaintiff was familiar with the locality in question, knew the condition of the tracks, being employed in the yards for several months prior to the accident, and failed to complain; and the answer further set forth that the plaintiff got in between the cars while in motion, in violation of the rules and regulations of the defendant company in that behalf made and provided, etc. The rule to which reference was made in the answer is the following: "Rule 55. Great care must be exercised by all persons when coupling cars. Inasmuch as the coupling apparatus of cars and engines cannot be uniform in style, size, or strength, and is liable to be broken, and, from various causes, to render it dangerous to expose the hands, arms, or persons of those engaged in coupling between them, all employes are enjoined, before coupling cars or engines, to examine so as to know the kind and condition of the draw-head, draw-bar, link, and coupling apparatus, and are prohibited from placing in the trains any car with a defective coupling until they have first reported its defective condition to the yard-master or conductor. Sufficient time is allowed and may be taken by employes in all cases to make the examination required. Coupling by hand is strictly prohibited in all cases where a stick can be used to guide the link or shackle, and each yard-master, switchman, brakeman, or other employe who may be expected to couple cars is required to provide himself at all times with a stick for that purpose. Every employe is required to exercise the utmost caution to avoid injury to himself or to his fellows, and especially in the switching of cars, and in all movements of trains, in doing which work each employe must look after and be responsible for his own safety. Jumping on or of trains or engines in motion, getting between cars in motion, or to uncouple them, and all similar imprudences, are dangerous, and in violation of duty. All employes are warned that if they commit them it will be at their own peril and risk. Every employe is hereby warned that before exposing himself in working or in being on the tracks or grounds of the company, or in working with or being in any manner on or with its cars, engines, machinery, or tools, he must examine for his own safety the condition of all machinery, tools, tracks, engines, cars, or whatever he may undertake to work upon or with before he makes use of or exposes himself on or with the same, so as to ascertain, so far as he reasonably can, their condition and soundness; and he is required promptly to report, either to the division superintendent, or to the agent who may be his immediate superior in office, any defect in any track, machinery, tools, or property of the company affecting the safety of any one in using or operating upon or with the same. The object of this rule is to protect employes from suffering personal injury from any cause. While the company will be responsible to each one for the discharge of all its duties and obligations to him, and for any fault or neglect of its own or of its board of directors or general officers which are the approximate cause of injury, yet it will not be responsible to him for the consequences of his own fault or neglect, or of that of any other employe of the company, whether they or either of them are superior to him in authority, as conductor, foreman, or otherwise, or not; it being the right and duty of every employe, under all circumstances, to take sufficient time before exposing himself to make such examination as is here required, and refuse to obey any order which would expose him to danger. No person who is careless of others or of himself should be continued in the service of this company. Every case of personal injury must be promptly reported in writing to the division superintendent, stating the names and residences of all witnesses, and all the particulars of the occurrence."

SHERWOOD, J., (after stating the facts as above.)

1. The first point for discussion is whether the testimony of Lamoreaux was admissible, as to having seen the next day a new block between the rails at the point of the accident, which block so filled the space between the rails as to render another like accident impossible. That testimony of subsequently occurring events, like the substitution of a new for the old block, is inadmissible for the purpose of originating an inference or implied admission of negligence because of failure to make the substitution at an earlier period, is supported by abundant authority, as shown by the briefs of defendant's counsel; and this court has announced the same doctrine. Hipsley v. Railroad Co., 88 Mo. 348; Brennan v. City of St. Louis, 92 Mo. 482, 2 S. W. Rep. 481. A different view from the one here asserted obtains in some jurisdictions, but obviously such a theory of the law places a virtual interdict upon a corporation or individual promptly making needful improvements or repairs when an accident occurs, for fear that such repairs or improvements will be construed into a tacit admission of prior negligence in failing to make them before, and thus to have prevented the litigated injury.

2. But it is objected that in any event the testimony in question was admissible for another purpose, to-wit, to establish the protective character of proper blocking, and therefore that a general objection to such testimony of its being "incompetent, irrelevant, and immaterial" was insufficient; that the objection should have been special. There are several answers to this contention. In the first place, there was no such issue raised by the pleadings; in the second place, not a particle of testimony was offered to show who substituted the new for the old block, — the necessity for which preliminary testimony is virtually recognized in Brennan v. City of St. Louis, supra; third, other testimony could readily have been introduced to show the necessity for a proper block, and the evident and only object of the controverted testimony was to convict the defendant company of a confession of negligence because of making repairs; and, fourth, the testimony for these reasons being wholly inadmissible as well as misleading, a general objection was sufficient. State v. Meyers, 99 Mo. loc. cit. 120, 12 S. W. Rep. 516. As is aptly said in Nalley v. Carpet Co., 51 Conn. loc. cit. 532: "If the subsequent act is made to reflect back upon the prior one, although it is done upon the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negligence which has no business there, not being in existence at the time." Touching similar evidence, it was said in a recent case in this court: "This evidence was not admissible to show negligence on the part of the city, for that must be made out by proof of the condition of the street and knowledge thereof by the city at the time the injury occurred." Brennan v. City of St. Louis, supra.

3. It is contended that the trial court properly refused to admit in evidence rule 55 of the defendant company, because the same had not been pleaded. This contention is grounded in error. That portion of the answer in reference to the rule is as follows: "Defendant for further answer says that plaintiff received the injury complained of in his petition in consequence of getting between the cars while in motion for the purpose of uncoupling them, in violation of his duty and of the rules and regulations of the defendant in that behalf made and provided."...