Brady v. Kansas City, St. L. & C. R. Co.

• Decision Date: 14 May 1907
• Citation: 102 S.W. 978,206 Mo. 509
• Court: Missouri Supreme Court
• Parties: BRADY v. KANSAS CITY, ST. L. & C. R. CO.

102 S.W. 978

206 Mo. 509

BRADY v. KANSAS CITY, ST. L. & C. R. CO.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. PLEADING — PETITION — DEFECTS — AIDER BY VERDICT.

Under Rev. St. 1899, § 672 [Ann. St. 1906, p. 686], providing that a verdict shall not be disturbed for insufficient pleading, etc., a petition, in an action for injury to a switchman while uncoupling cars, which alleges that plaintiff was employed in a switch yard belonging to defendant, and was required to go between cars of his employer, then being switched in the yard, and on the tracks belonging to defendant, is good after a verdict for plaintiff, where the answer alleges that the only duties which defendant owed to plaintiff were its charter duties,

restricted to the maintenance in proper condition for use of its roadbed and right of way.

2. RAILROADS — COMPANIES LIABLE — QUESTIONS FOR JURY — EVIDENCE — SUFFICIENCY.

In an action for injuries to switchman while engaged in uncoupling cars in a switch yard, the evidence showed a lease executed by defendant to another company covering the yard, and a lease by the lessee to the switchman's employer, and also a deed of the land to defendant, and a plat showing the location of the tracks. Held, that the question whether defendant owned the yard and was liable under Rev. St. 1899, § 1060 [Ann. St. 1906, p. 915], as if operating the road, was for the jury.

3. MASTER AND SERVANT — ASSUMPTION OF RISK.

A servant entering the employment of his master assumes not only the risks incident to the employment, but all dangers which are apparent and obvious as a result thereof.

4. SAME — ASSUMPTION OF RISK.

Where a switchman, in uncoupling cars, accidently and without negligence fell and was injured, the injury could only be attributed to one of the ordinary risks of the employment, and his employer was not responsible therefor.

5. SAME — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

In an action against a railway company for injuries to a switchman while uncoupling cars in a railroad yard, the question of his contributory negligence held, under the evidence, for the jury.

6. SAME — VERDICT — EFFECT.

Where, in an action against a railway company for injuries to a switchman while between cars to uncouple them, the company claimed that the act of the switchman in going between the cars was dangerous, and that by going to the other side of the cars he could have uncoupled them by a mechanical device without going between the cars, and the court charged that, if the switchman had the choice of two ways for uncoupling the cars, one of which was safe and the other unsafe, and he chose the unsafe way and was injured, he could not recover, a verdict for the switchman authorized the inference that the way chosen by him was not more dangerous than the other, and his right to a recovery could not be defeated on the ground that he was guilty of contributory negligence in selecting the unsafe way.

7. SAME — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Evidence, in an action against a railway company for injuries to a switchman while between cars to uncouple them, examined, and held, that the question whether he had the choice of two ways, one safe and the other unsafe, and chose the latter, was for the jury.

8. APPEAL — HARMLESS ERROR — ERRONEOUS INSTRUCTIONS.

Where, in an action against a railway company for injuries to a switchman while uncoupling cars in a switch yard leased by defendant to another company and by it to his employer, the court charged that Rev. St. 1899, § 1060 [Ann. St. 1906, p. 915], making a railroad company leasing its road to another liable as if operating the road itself, did not contemplate that defendant, as lessor, should be liable to the employés of the sublessee in operating its trains, a defect in an instruction that if the switchman was required to go between the cars in the yards of defendant to uncouple them, and while the cars were in motion the foreman of the switching crew negligently drew the coupling pin connecting the cars, causing the injury complained of, the verdict should be for the switchman, etc., arising from its failure to require the jury to find that defendant owned the tracks where the injury occurred, or that it had leased the same to the switchman's employer, was not prejudicial.

9. MASTER AND SERVANT — INJURY TO SERVANT — NEGLIGENCE OF FELLOW SERVANT — PROXIMATE CAUSE.

Where an injury to a switchman, resulting from the act of the foreman of the switching crew, was such as might have been foreseen and avoided by the foreman by reasonable prudence, the switchman was entitled to recover without showing that the foreman should have foreseen or anticipated the particular injury.

10. SAME — EVIDENCE — INSTRUCTIONS.

Where, in an action against a railway company for injuries to a switchman while between cars to uncouple them, the evidence showed that the foreman of the switching crew drew the coupling pin connecting the cars, allowing them to part, and causing the switchman to fall on the track, an instruction that, if the switchman was required to go between the cars to uncouple them, and while between them and uncoupling them the foreman negligently drew the coupling pin connecting them and caused the switchman to fall and sustain the injuries, and the foreman knew, or by ordinary care could have known, that the switchman was in a position of peril between the cars, the verdict should be for the switchman, etc., properly submitted to the jury the question of the negligence of the foreman in drawing the coupling pin and causing the cars to separate.

11. TRIAL — INSTRUCTIONS — ASSUMPTION OF FACTS.

Where, in an action against a railway company for injuries to a switchman while between cars to uncouple them, caused by the negligence of the foreman of the switching crew in drawing the coupling pin connecting the cars and allowing them to separate, the court submitted to the jury the question of the negligence of the foreman, an instruction that the switchman assumed the risks incident to the work, but did not "assume the risks, if there were any such, arising from the negligence of" the company or the foreman, was not open to the objection that it assumed that the company and the foreman were negligent.

12. SAME — CONFORMITY TO EVIDENCE.

Where, in an action against a railway company for injuries to a switchman while between cars to uncouple them, the evidence showed that the company had a rule prohibiting switchmen from going between cars, but that it had been the custom of the employés, in the presence of the yardmaster, to pass between cars to uncouple them, an instruction that, if the switchman customarily went between cars to uncouple them, and the custom was known to and acquiesced in by the superior officers of the company, the switchman was not guilty of contributory negligence solely on the ground that he violated the rule, was not erroneous as assuming facts not in evidence.

13. PROXIMATE CAUSE — QUESTION FOR JURY.

Where, in an action for injuries to a switchman while between cars to uncouple them, the evidence was conflicting on the question whether his act in going between the cars was the proximate cause of the injury, an instruction

that his act in going between the cars was the proximate cause of the injury, and that if it appeared that his act in so doing directly contributed to the injury he could not recover, was properly, refused, as amounting to an instruction to find for the company.

14. DAMAGES — PERSONAL INJURY — EXCESSIVE DAMAGES.

A verdict for $15,000 for injuries to a switchman with 14 years' experience, resulting in the loss of his foot and the lower part of his leg, is excessive, and will be reduced to $10,000.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by James T. Brady against the Kansas City, St. Louis & Chicago Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded conditionally.

Scarritt, Scarritt & Jones, for appellant. Walsh & Morrison, for respondent.

BURGESS, J.

This is an action to recover damages for personal injuries sustained by plaintiff on October 14, 1902, while engaged in the performance of his duties as switchman for the Chicago & Alton Railway Company. Plaintiff recovered judgment for $15,000, from which judgment, after unavailing motions for new trial and in arrest, defendant appealed.

The petition alleges the incorporation of the defendant company under the laws of the state of Missouri, and its ownership of a line of railroad in Kansas City, Mo., and elsewhere, together with switches and yards, and that by intermediate conveyances defendant leased the same to the Chicago & Alton Railway Company, a corporation organized under the laws of the state of Illinois. That on October 14, 1902, plaintiff was employed by the Chicago & Alton Railway Company as a switchman in and about the yards belonging to defendant in Kansas City, Mo., in a switching crew composed of one known as William Fredericks, real name unknown, as foreman, one Bankston, and the plaintiff, all being under a night yardmaster named Ed Medley. The petition then states that, in due course of his employment, plaintiff was required to go between and upon certain cars belonging to the Chicago & Alton Railway Company then being switched in said yards, and upon the tracks belonging to defendant, and, while plaintiff was so engaged, the said Fredericks, in the due course of his employment, and acting under the direction of said Medley, "carelessly and negligently drew a certain coupling pin which was connecting the said cars between which plaintiff was situated, as aforesaid, causing the said cars to separate suddenly and precipitate plaintiff to the track below, so that he was caught and run over by one of the said cars, causing him severe and permanent injuries." The allegations of negligence are as follows: (1) That said Medley carelessly, negligently, and...