Cambron v. Omaha & St. Louis Railroad Company
| Decision Date | 03 December 1901 |
| Parties | CAMBRON v. OMAHA & ST. LOUIS RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. Gallatin Craig, Judge.
Affirmed.
Ed. E Aleshire and J. G. Trimble for appellant.
(1) Objection to introduction of any evidence should have been sustained because the petition shows that plaintiff was guilty of contributory negligence. (2) Respondent's instruction number one is misleading and unintelligible. It is not sufficient that a skilled lawyer may be able to spell out correct legal principles from an instruction. It must be in plain and unambiguous language, affording the laymen of the jury a plain and intelligible view of the law without resort to conjecture. Crole v. Thomas, 17 Mo. 329; Young v. Ridenbaugh, 67 Mo. 574; Medlin v Brooks, 9 Mo. 106; Otto v. Brent, 48 Mo. 23; Blanton v. Dold, 109 Mo. 77; State v Darrah, 152 Mo. 543. (3) An instruction which ignores, or is unauthorized by, the evidence in the case is erroneous. Seckinger v. Philibert, 129 Mo. 591; Gorham v. Railroad, 113 Mo. 408; Benjamin v. Railroad, 50 Mo.App. 602; Williams v. Railroad, 96 Mo. 275. An instruction which undertakes to cover the whole case must be framed to meet all points raised by the evidence and pleadings on both sides, and plaintiff's first instruction is erroneous because it ignores the question of plaintiff's contributory negligence, raised by the answer and the evidence in the case. Clay v. Railroad, 17 Mo.App. 629; Ellis v. Wagner, 24 Mo.App. 407; Brownfield v. Ins. Co., 26 Mo.App. 390; Wood Machine Co. v. Bobbst, 56 Mo.App. 427; Mallman v. Harris, 65 Mo.App. 127; Clark v. Hammerle, 27 Mo. 70; Barr v. Kansas City, 105 Mo. 550; Wyatt v. Railroad, 62 Mo. 408. (4) The peremptory instruction to find for defendant, asked at the close of the evidence, should have been given. (a) There was no negligence on the part of the engineer for the reason that he did not and could not know that plaintiff was in peril. Hogan v. Railroad, 150 Mo. 54; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 236; Halligan v. Railroad, 71 Mo. 113; Henry v. Railroad, 76 Mo. 288; Rine v. Railroad, 88 Mo. 392. (b) Plaintiff was guilty of negligence which did not merely contribute to, but was the direct cause of, the injury, and is not entitled to recover. Railroad v. Williamson (Ala.), 21 So. Rep. 827; Sanders v. McGhee (Ala.), 21 So. Rep. 1006, and authorities cited; Hogan v. Railroad, 150 Mo. 55; Hudson v. Railroad, 101 Mo. 13; Finnell v. Railroad, 129 N.Y. 669; Huston v. Railroad, 38 S.W. 51; Gleason v. Railroad, 73 F. 647; George v. Railroad, 109 Ala. 245; Harlan v. Railroad, 64 Mo. 480. Plaintiff was not compelled to go upon the track in front of the train, but could have reached the coupling-pin easily while holding to the grabiron, and with both feet outside the rail. That would have been a safe way, but he chose the unsafe one and can not recover. Hulett v. Railroad, 67 Mo. 239; Moore v. Railroad, 146 Mo. 572. Plaintiff can not recover for negligence in speed of the train (even if the engineer were guilty of negligence), because such speed was directly under his control. Gorham v. Railroad, 113 Mo. 423. Plaintiff knew the conductor and rear brakeman were at the caboose and that the engineer was subject to his orders and wholly dependent upon him for guidance in the management of the train. He signalled an order to the engineer to back, and immediately placed himself out of the line of the engineer's vision. With his back toward the engine, and without trying to ascertain whether the engineer could see him, he undertook to inform the engineer that a car was on the track three or four car-lengths from the rear of the train, when, in reality, it was nine or ten car-lengths away. Still carelessly oblivious of the fact that the engineer could not see him, he undertook to signal an order to run slow. He knew, or should have known, long before he reached the car that he had underestimated the distance and that if the train should stop after running only three or four car-lengths, it would still be five or six car-lengths away, and the coupling could not have been made. He knew that in order to enable him to make the coupling the train must not stop until after coming in contact with the standing car; he knew car-length signals were merely estimates of distance and not orders to stop; he knew the train had not stopped, because he heard the noise it made as it came towards him; he knew the engineer depended entirely upon him for orders for the management of the train, and could not know where he was. With all this knowledge, he did not once glance over his shoulder as he "trotted" along to see where the train was, or how it was moving.
Frank Hagerman and L. H. Waters for respondent.
(1) If the proper signals were given to the engineer and the train came in on the house track at a dangerous rate of speed because of the defective brakes, then defendant was liable if plaintiff was not negligent. Settle v. Railroad, 127 Mo. 341; Hurlburt v. Railroad, 130 Mo. 667; Bluedorn v. Railroad, 121 Mo. 268; Moberly v. Railroad, 98 Mo. 183; Henry v. Railroad, 109 Mo. 488; Huhn v. Railroad, 92 Mo. 450. Where the facts are before the jury the presumptions or inferences they warrant are questions purely for them. Ham v. Barrett, 28 Mo. 388; Bluedorn v. Railroad, 121 Mo. 270. It is a well-established rule that courts must accept the most favorable inferences in support of the verdict which the evidence will authorize. Hooper v. Railroad, 8 Am. Neg. Rep. 454. If the brakes on the engine were so defective as to be useless and the train went in on the house track at a dangerous rate of speed, the jury was authorized to infer that the speed was attributable to such defects. The fireman testified that in his opinion the train went in as slow as he could hold it. Hurlburt v. Railroad, 130 Mo. 668. Causal connection between the defective condition of the brakes and the injury need not be shown by direct proof of the fact itself. It is sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred. Settle v. Railroad, 127 Mo. 341; Wharton on Negligence, sec. 420. (2) If the engineer was guilty of negligence, as charged, in going in on the house-track at a dangerous rate of speed, considering the work to be done, then the defendant is liable under the Act of February 9, 1897. The jury found that the plaintiff gave the engineer every signal required, and had they been observed and obeyed, the injury could not have occurred. That the train was run in, regardless of all those signals, is not denied. He not only disregarded the signals but failed to recognize the fact that the brakes on his engine were useless and that he was running in on a down grade. After the signals were given the responsibility for the movement of the train was upon the engineer and he was in control of the speed of the train and charged with the duty of watching the movements of plaintiff. Railroad v. Conroy (U. S.), 7 Am. Neg. Rep. 198; Railroad v. Adams (Ky.), 51 S.W. 578; Railroad v. Earl's Admr., 94 Ky. 375. The jury might well have inferred from the evidence, that the dangerous rate of speed was the result of the negligence of the engineer. Settle v. Railroad, 127 Mo. 341; Wharton on Negligence, sec. 420. (3) Plaintiff had a right to assume that the engineer would obey the signals he had given to him, and that the train would back in at a safe rate of speed. Such signals were in common use and well understood by the engineer. Sullivan v. Railroad, 117 Mo. 222; Kelley v. Railroad, 101 Mo. 67; Eswin v. Railroad, 96 Mo. 290; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Bluedorn v. Railroad, 121 Mo. 270. He had a right to presume that the engineer would get his train under control as it was his duty to do. Richards v. Railroad (Ky.), 49 S.W. 419; Hooper v. Railroad, 8 Am. Neg. Rep. 454. He was not guilty of negligence in running in advance of the train to set the pin, or to make the coupling. Richards v. Railroad (Ky.), 49 S.W. 419; Dysart v. Railroad, 145 Mo. 83. His duty took all his attention, and under the circumstances he was not required to see if the engineer was doing his duty. Plank v. Railroad, 60 N.Y. 607. The law presumes that plaintiff was in the exercise of ordinary care and properly performed his duty. Stepp v. Railroad, 85 Mo. 229; Petty v. Railroad, 88 Mo. 306; Schlereth v. Railroad, 96 Mo. 509; Bluedorn v. Railroad, 108 Mo. 448. The practice of the trainmen and the custom in making such couplings was a part of the mode of conducting defendant's work and it is presumed to have been sanctioned by defendant. In all plaintiff did, he acted in accordance with the practice and custom on that road. Rutledge v. Railroad, 123 Mo. 134; Dewalt v. Railroad, 55 S.W. 534. The plaintiff was where his duties required him to be. The work required promptness and if he did it in the usual and customary way he was not negligent. Wharton on Negligence, sec. 210; Bluedorn v. Railroad, 108 Mo. 448; Greenleaf v. Railroad, 27 Iowa 47; Snow v. Railroad, 8 Allen (Mass.), 441; Goodfellow v. Railroad, 106 Mass. 461. The question is not whether the jury might have inferred negligence, but whether the court should have so declared as a matter of law. Bluedorn v. Railroad, 108 Mo. 448; Schroeder v. Railroad, 108 Mo. 322. It can not be said, as a matter of law, that plaintiff was negligent in keeping his eyes and attention upon the business of his employer for a few seconds, or in going upon the track to set the coupling-pin, when, if the train had been running at a proper and safe rate of speed, upon which he had a right to rely after having given the...
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