Black v. Missouri Pac. Ry. Co.

• Citation: 172 Mo. 177,72 S.W. 559
• Parties: BLACK v. MISSOURI PAC. RY. CO.
• Decision Date: 24 February 1903
• Court: United States State Supreme Court of Missouri

72 S.W. 559

172 Mo. 177

BLACK v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

SERVANT — INJURIES — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — EVIDENCE — INSTRUCTIONS — EXCESSIVE DAMAGES.

1. In an action against a railroad for injuries to a servant, the petition alleged that plaintiff went between certain cars to uncouple them "under the supervision of his foreman," and that while plaintiff was in the performance of his duties the engine was suddenly and without warning started backward, whereby he was injured. The court instructed, at defendant's request, that the only negligence alleged was that defendant suddenly started the engine backward. Plaintiff testified that he was not directed to go between the cars. Held that, it appearing that the case had been tried on the theory that the negligence complained of consisted in the backing of the train, defendant could not complain on appeal that, in view of plaintiff's own testimony, he had recovered on facts contradictory to the allegations of the petition.

2. In an action against a railroad for injuries to a servant while between cars and endeavoring to uncouple them, the court, at defendant's request, instructed that if the jury believed there were two ways in which to uncouple a car — one safe and the other dangerous — and that plaintiff voluntarily adopted the dangerous way, he could not recover. Held, that inasmuch as it would be presumed on appeal that there was evidence tending to show the course taken by plaintiff was not more dangerous than the other, or the instruction would not have been asked, and the jury having by their verdict so found, defendant could not complain that plaintiff, in going between the cars, was guilty of contributory negligence.

3. Whether a railroad switchman, in standing between freight cars, endeavoring to take out a coupling pin, his back being toward the engine, was guilty of contributory negligence, when, as claimed by defendant, he could have stood with his face toward the engine, was a question for the jury.

4. The court instructed that if plaintiff could have turned his face toward the front of the train, and seen any movements thereof in time to avoid injury, then, in turning his face the other way, he was guilty of contributory negligence. Held to fairly present the question of contributory negligence to the jury.

5. In an action against a railroad for personal injuries, it was proper to refuse to allow defendant, in cross-examining plaintiff, to ask whether he ever knew of a person injured in a railroad accident getting well until after his case was tried.

6. In an action by a servant against a railroad for injuries sustained while he was standing between freight cars, endeavoring to take out a coupling pin, any error in requiring plaintiff's foreman to state whether he expected plaintiff to go between the cars was not prejudicial to defendant, or of sufficient importance to justify reversal of a judgment in plaintiff's favor.

7. Five thousand dollars damages for injuries to a railroad switchman was not excessive; it appearing that two ribs and a collar bone were broken, and several bruises sustained, and the evidence as to whether the injuries were permanent being conflicting.

8. The engineer of a switch engine, who backs a train without having received any signal to do so, whereby another servant is injured, is guilty of negligence.

Appeal from circuit court, Pettis county; Geo. F. Longan, Judge.

Action by Samuel A. Black against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Martin L. Clardy and Wm. S. Shirk, for appellant. John Cashman and Sangree & Lamm, for respondent.

BURGESS, J.

This is an action for damages for personal injuries by an employé of the defendant company against it, alleged to have been occasioned by reason of the defectiveness of the coupling of one of its freight cars, and the negligent moving of the car by the servants and employés of defendant. There was a trial in the court below before a jury, and a verdict for plaintiff in the sum of $5,000. The defendant in due time filed motions for new trial and in arrest, which being overruled, it appeals.

The petition, after alleging that in the train of cars by which plaintiff was injured there was a defective car, whose drawhead had been pulled out, and the deadwood appurtenant thereto so damaged as to let the drawhead of the car to which it was directly attached pass under it, and the two cars come together, and that the damaged car was fastened to the car next to it with a temporary chain coupling (omitting a description of plaintiff's injuries, and other allegations not necessary to set forth), proceeds as follows: That he "was under the immediate supervision of one of defendant's switch foremen, or bosses of a switch crew, and was engaged, in the line of his duty, in aiding in cutting up and making up trains, switching cars, cutting out cars," etc., "in said yards; * * * that it became then and there his duty, in the line of his said employment, to help cut out said defective car from said train, and, under the direction of his said foreman, he was then and there engaged in aiding so to do; that one of defendant's switch engines was attached to said train at the time for the purpose of moving the cars thereof when and where necessary; * * * that while and when said train had come to a standstill the defective car was pushed back by hand by said switch crew, under the supervision of said foreman, so as to admit a switchman to get between it and the next car to uncouple the same as aforesaid, and this plaintiff, in the line of his duty, and under the supervision and direction of his said foreman, went between the cars to so uncouple them, as was usual and proper for him to do, and while engaged in so doing, and while exercising due care and caution himself, the engine attached to said train was suddenly, violently, negligently, and recklessly, without warning of any sort, and without any knowledge on the part of plaintiff, started back by defendant, acting through its agents and employés, and by such start it drove and smashed said cars quickly together, and thereby catching plaintiff, without any fault on his part, and smashing him between said cars and injuring him as hereinafter set forth; that it was the duty of defendant to use care and caution in manipulating said train, and not to start or back the same without warning and signals; and plaintiff avers that defendant owed such duty and such care to plaintiff, so exposed as he was to peril and harm at the time, and that defendant negligently and recklessly omitted to perform such duty, and negligently and recklessly omitted to use care and caution in starting said train, and negligently and recklessly started said train backward without warning as aforesaid, and plaintiff avers that all his consequent injuries, wounds, hurts, pains, losses, and damages hereinafter referred to were directly caused by the negligence of defendant in the premises. * * *" The defenses were a general denial and a plea of contributory negligence. At the time of the accident, July 25, 1898, the plaintiff was a switchman in defendant's yards at Sedalia, Mo., whose duties were to assist in making up trains, taking out and placing cars in trains, and manipulating switches; and on that day, about the middle of the afternoon, a freight train, called "No. 126," ran into the yard from the west. One of the cars of this train had a drawbar pulled out. The switch engine used by the switch crew of which plaintiff was a member hooked onto this train, and pulled it to the east end of the yards, where trains for the east are usually made up. The main line of the Missouri, Kansas & Texas Railroad crosses the main line and the other tracks of the Missouri Pacific in the east end of the Missouri Pacific yards. About the time train No. 126 was pulled into the east end of the yards by the yard engine, a Missouri, Kansas & Texas train pulled up south of the Missouri Pacific tracks for the purpose of crossing and going on north. The Missouri Pacific switch crew had pulled No. 126 east of this crossing, and the switchman in charge of the Missouri, Kansas & Texas crossing switch adjusted the switches to let the Missouri, Kansas & Texas train cross. The switch crew pulled Missouri Pacific train No. 126 east of this crossing, and the plaintiff and other members of the switch crew gave the engineer of the switch engine the ordinary signal to stop; and the plaintiff says he then repeated the signal, as a direction to the engineer to stand still. The switch crew intended to uncouple the chain which fastened the car without a drawbar, to the one next to it, so as to cut that car out for...