Black v. Missouri Pacific Railway Company

• Decision Date: 24 February 1903
• Citation: 72 S.W. 559,172 Mo. 177
• Parties: BLACK v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

72 S.W. 559

172 Mo. 177

BLACK v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

February 24, 1903

Appeal from Pettis Circuit Court. -- Hon. Geo. F. Longan, Judge.

Affirmed.

M. L Clardy and Wm. S. Shirk for appellant.

(1) Plaintiff admits that he was not directed to go between the cars to pull the pin by his foreman, and all the evidence shows that he did so voluntarily. His petition alleges that he went between the cars to uncouple them "under the supervision and direction of his said foreman." He was permitted to recover upon an admitted state of facts, wholly at variance with, and contradictory to, the allegations of the petition. This was error. Neville v. Bridge Co., 158 Mo. 293; Chitty v. Railroad, 148 Mo. 64; Crawford v. Aultman, 139 Mo. 262; Haynes v Trenton, 108 Mo. 123; Raming v. Railroad, 157 Mo. 477. (2) The theory of the petition, and the theory upon which he was permitted to recover, are radically at variance and the principles of law applicable wholly different. If he went in between the cars by the direction of his foreman, then he assumed no risks, except such as were glaring and highly dangerous. If he went in voluntarily and unnecessarily, then he assumed all risks of whatever character. Warner v. Railroad, 62 Mo.App. 184; Malone v. Morton, 84 Mo. 436; Hogus v. Railroad, 50 Mo.App. 250; Stephens v. Railroad, 86 Mo. 221; Huhn v. Railroad, 92 Mo. 440; Mahaney v. Railroad, 108 Mo. 191; O'Mellia v. Railroad, 115 Mo. 205; Hamilton v. Railroad, 108 Mo. 364. (3) There are two well-known methods of unchaining a badorder car. The first is by getting the cars far enough apart, and then going between them, to pull the pin. The second is, to go underneath the cars, slack the chain and pull the pin. The first method is by far the more dangerous, as is illustrated by this case. Reed adopted the latter plan, and was not hurt by the movement of the engine and cars. Plaintiff voluntarily and without direction or request adopted the more dangerous plan and was injured. In such case, if the employee, having choice of two different ways of doing a thing, voluntarily adopts the dangerous way and is for that reason injured, he can not recover because he had but himself to blame for his injury. Kinney v. Corbin, 132 Pa. St. 341; Railroad v. George, 94 Ala. 199; English v. Railroad, 24 F. 906; Hulet v. Railroad, 67 Mo. 239; 14 Am. and Eng. Ency. of Law (1 Ed.), p. 862; Johnson v. Bruner, 61 Pa. St. 58; St. Louis, etc. Assn. v. Brennan, 20 Ill.App. 555. (4) Plaintiff when injured was standing with his back toward the engine, with about nineteen cars between him and the engine. It was gross negligence on his part to do so. By so doing, he deprived himself absolutely of the ability to see the cars moving towards him, and very largely of the ability to hear the movement of the cars which Emmert heard. Plaintiff was an old and experienced brakeman and chose his own method of doing his work. He knew it was very dangerous to go between cars which would shove close together owing to a draw bar being out of one, and he assumed all risks of going between the cars in a way which prevented him from seeing or hearing approaching danger. Railroad v. Estes, 37 Kan. 715; White v. Sharp, 27 Hun (N. Y.) 94; Wetzen v. Lead Co., 5 Mo.App. 597; Railroad v. O'Shaugnessy, 122 Ind. 588; Daudie v. Railroad, 42 La. Ann. 686. (5) The verdict of $ 5,000 is grossly excessive, and evidences the fact that the jury were governed by prejudice or undue sympathy. That the plaintiff was a malingerer, and purposely kept his arm from getting well prior to the trial, no one who will read the evidence can doubt. Three physicians in effect so testified. Dr. Ferguson testified that when he examined plaintiff's arm and shoulder, he resisted his movements of the arm, and that if he was placed under the influence of chloroform, the movements of the injured arm would be as good as the other. And three other doctors testified that if he would go to work, or even exercise his arm, it would get practically well. Under such circumstances, will this court sustain a verdict, which will put in this man's pocket more money than he could have earned and saved in a long lifetime of labor? Chitty v. Railroad, 148 Mo. 64; Nicholds v. Glass Co., 126 Mo. 55; Gurley v. Railroad, 104 Mo. 211; Burdict v. Railroad, 123 Mo. 236.

John Cashman and Sangree & Lamm for respondent.

(1) The act of the engineer in backing his train, contrary to all usage, custom and common sense, without a signal so to do and without warning that he intended to do so, while plaintiff, who was a yard brakeman, commonly known as a switchman, was aiding in cutting out a chained-up car, was recklessly negligent. Plaintiff had the right to rely on the engineer's performing his duty and not moving without receiving a signal so to do and obeying the signals he had already received, and he had the further right to rely on the usage and custom that if, by any emergency, the engineer had to move, he would give a warning by blasts of his whistle. Cambron v. Railroad, 165 Mo. 543; Wilkins v. Railroad, 101 Mo. 105; Butler v. Railroad, 87 Iowa 206. The principle is the same as that at the root of those cases wherein ordinances and statutes are violated. Sullivan v. Railroad, 117 Mo. 221; Eswin v. Railroad, 96 Mo. 290; Killney v. Railroad, 101 Mo. 67; Crumley v. Railroad, 111 Mo. 152; Sullivan v. Railroad, 117 Mo. 214; Bluedorn v. Railroad, 121 Mo. 258; O'Conner v. Railroad, 94 Mo. 150; Kenney v. Railroad, 105 Mo. 270. These signals and usages are part of defendant's method of transacting its business. Rutledge v. Railroad, 123 Mo. 121; Love v. American Mfg. Co., 160 Mo. 608; Cambron v. Railroad, supra. (2) The petition, fairly read and boiled down, states our cause of action to be that plaintiff was injured by the specified negligence of the engineer while plaintiff was performing his usual duties as a switchman. This cause of action, in its entirety, was sustained by the overwhelming weight of the testimony. The case was tried and submitted to the jury below on the theory last above mentioned and all sides construed the petition to state the foregoing cause of action and no other, as witness the testimony and instructions. "The defendant fought within the lines of the issue -- took its chances and lost." Fisher Real Estate Co. v. Realty Co., 159 Mo. 568. (3) One need not prove all negligent acts alleged. If negligent acts are proved of the same character as alleged, but not to the same extent, there is no variance. Werner v. Railroad, 81 Mo. 368; Frederick v. Algaier, 88 Mo. 604; Ridenhour v. Cable Co., 102 Mo. 270; Knox Co. v. Groggin, 105 Mo. 183; Gannon v. Gas Light Co., 145 Mo. 511; Stern v. St. Louis, 161 Mo. 146; Anderson v. Railroad, 161 Mo. 431; R. S. 1899, secs. 655 to 660, and secs. 672 and 676. (4) Appellant, in the absence of a complaint of surprise, by affidavit below, will not be heard now to complain of a mere variance in some particulars of the proof, even if one actually existed. Fischer v. Max, 49 Mo. 404; Ely v. Porter, 58 Mo. 158; Turner v. Railroad, 51 Mo. 501; Clement v. Maloney, 55 Mo. 352; Meyer v. Chambers, 68 Mo. 626; Olmstead v. Smith, 87 Mo. 602; Leslie v. Railroad, 88 Mo. 50; Bank v. Wills, 79 Mo. 275; Wise v. Railroad, 85 Mo. 178; Ridenhour v. Railroad, 102 Mo. 283; Mellor v. Railroad, 105 Mo. 466; Bank v. Leyser, 116 Mo. 51; Fisher Real Estate Co. v. Realty Co., 159 Mo. 562. (5) Whether there were two well-known ways of pulling a pin in a chained-up car, a safe way (under the car), and a dangerous way (between the cars), and whether plaintiff, on his own initiative, unnecessarily adopted the dangerous way and thereby was hurt, were all questions for the jury on this record, were put to the jury in the form requested by appellant and answered against appellant. Barry v. Railroad, 98 Mo. 62; Murphy v. Railroad, 115 Mo. 111; Cambron v. Railroad, supra; Bluedorn v. Railroad, 108 Mo. 448; Godfellow v. Railroad, 106 Mass. 461.

OPINION

BURGESS, J.

This is an action for damages for personal injuries by an employee 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 employees of defendant.

There was a trial in the court below before a jury, and a verdict for plaintiff in the sum of five thousand dollars.

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 dead-wood appurtenance 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...