Anderson v. St. Louis & San Francisco Railroad Company

• Decision Date: 07 July 1910
• Citation: 130 S.W. 82,149 Mo.App. 266
• Parties: HERMAN B. ANDERSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

130 S.W. 82

149 Mo.App. 266

HERMAN B. ANDERSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 7, 1910

Appeal from Stoddard Circuit Court.--Hon. J. L. Fort, Judge.

Judgment reversed and cause remanded.

W. F Evans, W. J. Orr and J. H. Orr for appellant.

(1) There was no casual connection shown between the things complained of and the accident. There was an entire failure of proof as to the proximate cause. Foley v McMahan, 114 Mo.App. 442; King v. Railroad, 211 Mo. 1; Coin v. Lounge Co. (Mo.), 121 S.W. 1; St Clair v. Railroad, 34 S.W. 76; Evans v. Railroad, 17 Mo.App. 624; Lowry v. Railroad, 40 Mo.App. 554; Grattis v. Railroad, 153 Mo. 380; McGrath v. Railroad, 197 Mo. 97; Warner v. Railroad, 178 Mo. 133; Hodges v. Railroad, 116 S.W. 1131; Bradley v. Railroad, 64 Mo.App. 475; Lawrence v. Ice Co., 119 Mo.App. 328; Jackson v. Railroad, 157 Mo. 621; Railroad v. Tritts, 108 S.W. 841; Quisenbury v. Railroad, 126 S.W. 182. (2) As a matter of law no rate of speed in the country is negligence per se, and there being no proof that the speed of this train was dangerous or was a cause of the accident, it was error to submit that matter to the jury. Potter v. Railroad, 18 Mo.App. 694; Main v. Railroad, 18 Mo.App. 388; Campbell v. Railroad, 59 Mo.App. 151; Owens v. Railroad, 58 Mo.App. 386; Lowry v. Railroad, 40 Mo.App. 554; Evans v. Railroad, 17 Mo.App. 624; Goodwin v. Railroad, 75 Mo. 73; Wallace v. Railroad, 74 Mo. 394; Young v. Railroad, 70 Mo. 336; Pryor v. Railroad, 69 Mo. 215; Railroad v. Ritchie, 102 Pa. 125; Childs v. Railroad, 150 Pa. 73. (3) Having the choice of a safe place in which to ride after he stopped unloading ties (the caboose), and failing to go to the same, was a failure on the part of the plaintiff to exercise reasonable and ordinary care for his own safety, and contributory negligence, because the undisputed evidence shows that he would not have been injured had he gone to the caboose. State ex rel. v. Railroad, 65 A. 635; Harding v. Railroad, 66 A. 151; Snow v. Mfg. Co., 66 A. 881; Railroad v. Stallings, 70 Ark. 603; Railroad v. Jones, 95 U.S. 439; Gilber v. Railroad, 107 S.W. 1021; Moore v. Railroad, 176 Mo. 528; Williams v. Railroad, 146 Mo. 572. (4) The rule, res ipsa loquitur, has no application in actions of this kind, between master and servant, where there are eye witnesses to the accident, or where specific acts of negligence are charged. Klebe v. Distilling Co., 207 Mo. 480, 105 S.W. 1057. (5) Where the evidence leaves it to conjecture as to the cause of an accident, or when the evidence leaves it in doubt whether the accident resulted from defendant's negligence or from other causes, there can be no recovery. O'Connor v. Railroad, 106 N.W. 161; Gettys v. Transit Co., 103 Mo.App. 564, 78 S.W. 82; Rissler v. Transit Co., 113 Mo.App. 120, 87 S.W. 578; Ries v. Transit Co., 179 Mo. 1, 77 S.W. 734; Moore v. Railroad, 176 Mo. 528, 75 S.W. 672.

Wilson Cramer for respondent.

(1) It is the duty of the master to use reasonable care to furnish his employee with reasonable safe tools and appliances with which to do the work required of him, and a reasonably safe place to work. Burkhard v. Rope Co., 217 Mo. 481; Huston v. Railroad, 219 Mo.App. 584. (2) The servant assumes no risk which arises from the negligence of the master. Charlton v. Railroad, 200 Mo. 435.

OPINION

COX, J.

--Plaintiff brought suit to recover damages for personal injuries sustained while in the discharge of his duty as an employee of defendant by the derailment of cars in consequence of a collision with cattle on the public crossing, and obtained judgment for five thousand dollars. Defendant has appealed.

The petition alleges that on the 13th of January, 1906, plaintiff, as an employee of defendant, was engaged in unloading ties from a moving train; that this train consisted of an engine, six flat cars loaded with ties and a caboose; that four of these cars were provided with air-brakes and two were non-air cars; the ties were unloaded as the train moved slowly along; that the rules of the company required the cars with air-brakes to be placed next to the engine, but in making up this train defendant negligently and carelessly placed the non-air cars next to the engine and the air cars in the rear and then proceeds as follows:

"That when the train had gone about two and one-half miles, it was discovered that a passenger train was approaching from the rear, and for the purpose of clearing up the track for this train, defendant's agents and employees having charge of said work train, upon which plaintiff was then engaged in unloading ties, undertook to run their said train to a siding near the station of Taskee in order to let the passenger train pass.

"That for the purpose of reaching this siding ahead of the passenger train, they carelessly and negligently ran said work train at unusual and dangerous rate of speed and in excess of the speed prescribed for such trains, running between twenty-five and thirty miles an hour; that, before reaching the station of Taskee, said train was required to pass over a wagon road and bridge immediately adjoining which spanned a small bridge.

"And plaintiff further states that when said work train had started to run from said passenger train the two front cars had been unloaded and plaintiff was standing on the third car unloading ties.

"That when said train approached said public wagon road it was discovered that a lot of cattle were standing and lying on said road and on the railroad track, but owing to the great rate of speed at which the train was running and to the fact that defendant had carelessly and negligently failed to place the air cars next to the engine and that, therefore, its speed could not be checked and the train stopped in time, said train struck said cattle and the second, third and fourth cars in the train were derailed and thrown down the embankment."

Then, after describing plaintiff's injuries, the petition concludes as follows:

"That such injury and loss were occasioned to him by the carelessness and negligence of the defendant company in careless and negligent failure to place the cars having air-brakes next to the engine and in running its said train at a dangerous rate of speed, and that plaintiff has been damaged in the sum of seven thousand five hundred dollars for which he prays judgment."

The answer was a general denial, plea of contributory negligence and assumption of risk. The evidence on the part of plaintiff tended to prove the allegations of the petition as to the manner of making up the train and performance of the work, and that while at work the train moved from four to six miles an hour; that twelve miles per hour was the limit for trains on that track, but why this limit was fixed does not appear. That after the train had moved two miles or more and two cars of ties nearest the engine had been unloaded, and while unloading the third car, a passenger train was discovered approaching from the rear, and that then this work train without any notice to the employees increased its speed for the purpose of reaching Taskee, some four miles ahead, where it could be switched, allowing the passenger train to pass; that it ran eighteen or twenty or twenty-five miles per hour and was going at a fast rate when it reached the crossing where the accident occurred. Plaintiff's testimony as to the manner in which the accident occurred is as follows:

"We went something like two miles working along and paying no attention to anything but our work, and the train began to speed up, and we quit unloading on account it was going too fast and was dangerous; we looked back and saw the passenger train behind, and discovered what their idea was for running that way. No signal was given us or nothing of the kind, the train pulled and went right ahead at a very rapid speed."

"Q. Now, after you noticed the train was proceeding too rapidly to throw off ties, what did you see and hear? A. Well, we just stopped, and didn't really know what was the matter and looked back and saw...