Clark v. Missouri, K. & T. R. Co.

• Decision Date: 25 November 1903
• Citation: 179 Mo. 66,77 S.W. 882
• Court: Missouri Supreme Court
• Parties: CLARK v. MISSOURI, K. & T. R. CO.

77 S.W. 882

179 Mo. 66

CLARK v. MISSOURI, K. & T. R. CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

MASTER AND SERVANT — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — ASSUMPTION OF RISK—CARRIAGE OF STOCK—ESCAPE OF ANIMALS—DANGEROUS NATURE—PLEADING—ANSWER — ADMISSION OF ANSWER — USE BY PLAINTIFF—USE OF PART—PROXIMATE CAUSE —CARRIERS—NOTICE OF CHARACTER.

1. Under Const. art. 6, § 6, as amended in 1884, providing in substance that where one of the judges of the St. Louis Court of Appeals is of opinion that a decision of that court is in conflict with a decision of the Supreme Court or of any Court of Appeals, the cause shall be certified to the Supreme Court for determination, as in case of ordinary appellate process, the jurisdiction of the Supreme Court to determine the entire appeal does not depend upon the fact that there is in reality any such conflict, but depends on the fact that one of the judges of the Court of Appeals deemed such conflict to exist.

2. A railroad section hand attempted to round up a Texas steer which had escaped from a wreck, and, being attacked by the steer, was injured. In an action against the railroad, plaintiff's theory was that the particular steer was of a dangerous character, which was known to defendant and unknown to plaintiff, and of which plaintiff should have been warned. An answer of defendant, which had been amended and abandoned, admitted that Texas cattle were wild and vicious, and that when confined and excited they were more dangerous than usual, which quality of Texas steers was a matter of notoriety, especially among railroad men. Held, that plaintiff was not entitled to recover on the theory that defendant's answer admitted all Texas cattle to be fierce naturally, and hence the steer in question to be such, so as to render it unnecessary for plaintiff to prove the character of steer in question to have been known to defendant, inasmuch as plaintiff could not for his own purpose separate such admission from the further allegation as to the general notoriety of the character of Texas cattle.

3. It appeared that, when plaintiff and his companions started to round up the steer, plaintiff armed himself with a club as big as his arm, and six or seven feet long, and plaintiff testified that, when they came upon the steer in question, he "acted wild" and ran along the track; that the morning was foggy, so that he could not see the steer when one of his companions called that the steer was coming; and that a moment afterwards the steer appeared coming towards him. Held, that the plaintiff had knowledge as to the character of the steer at the time he was placed in peril.

4. Plaintiff, a railroad sectionman, together with others, was endeavoring to round up a Texas steer which had escaped from a wrecked train. Plaintiff was on the railroad track when a companion called that the steer was coming. Plaintiff stood where he was, not being able to see the steer, because of fog. The steer emerged from the fog heading towards plaintiff. He struck at him with a club, and the steer passed on, but plaintiff ran down the embankment of the road, and was precipitated into a pit and injured. Held, that the failure of the railroad to warn plaintiff of the vicious character of the steer was not the proximate cause of the injury.

5. A common carrier is not chargeable with notice that Texas cattle carried by it are dangerous and vicious and liable to injure employés.

Appeal from Circuit Court, Montgomery County; E. M. Hughes, Judge.

Action by Pleasant W. Clark against the Missouri, Kansas & Texas Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Geo. P. B. Jackson, for appellant. E. Rosenberger & Son and J. D. Barnett, for respondent.

MARSHALL, J.

This is an action for personal injuries. The plaintiff recovered $2,500 damages in the circuit court, and the defendant appealed to the St. Louis Court of Appeals, where the judgment was affirmed; but, as one of the judges of that court was of opinion that the decision therein was in conflict with certain previous decisions of this court and of the Courts of Appeals, the cause was certified to this court for determination pursuant to section 6 of the amendment of 1884 to article 6 of the Constitution, and by that section it is made the duty of this court to rehear and determine the cause "as in case of jurisdiction obtained by ordinary appellate process." The respondent has filed a motion to remand the cause to the St. Louis Court of Appeals because he claims that an analysis of the cases with which the decision of the Court of Appeals in this case was deemed by said judge of said court to conflict shows that no such conflict exists. But this motion must be overruled, because the jurisdiction of this court in such cases does not depend upon the fact that there is in reality any such conflict, but depends solely upon the fact that one of the judges of the Court of Appeals deemed such conflict to exist. This court may be fully satisfied that there is no such conflict, but it cannot remand the case, because the Constitution makes it the duty of this court in such cases to rehear and determine the cause as in case of jurisdiction obtained by ordinary appellate process.

The injury complained of was received near Marthasville, in Warren county, on May 10, 1897. The plaintiff was a section hand in the employ of the defendant. A freight train of the defendant was wrecked. One of the cars contained Texas steers. That car was broken open, the steers escaped, and the section gang, of which the plaintiff was a member, was summoned to the wreck. Some of the steers remained near the wreck. Most of them went towards the east, and one went towards the west. The section gang in charge of the part of the road where the accident occurred was composed of Otto Housman, foreman, his two sons, Jim and George, and the plaintiff. When the plaintiff reached the scene of the wreck, he and Jim Housman were ordered to go with the station agent, Walker, and gather up the cattle and put them in the cattle pens at Marthasville. They first put up those that remained near to the wreck, and then took horses and went after those that had gone east, and found them and put them in the pens. Then the foreman told his two sons. Jim and George Housman, and the plaintiff, that one of the steers had gone west, and directed them to go after it and drive it back to the pens. They obeyed the order and went. This preliminary statement is made to facilitate an understanding of the nature of the negligence charged against the defendant. The negligence charged in the petition is this: "That one steer, known as a Texas steer, was very wild and vicious, and very dangerous to handle, and by reason of having been in said wreck, and being bruised and otherwise injured, and greatly frightened and excited, its wild, vicious, and dangerous character was greatly increased. That plaintiff had no experience in such work, and was uninformed as to the danger attendant upon it, and was wholly ignorant of the dangerous, wild, and vicious character of said steer, or of the circumstances aforesaid, which had greatly increased the same. That all of said facts were well known to the officers and servants of the defendant, under whose control this plaintiff was at the time, or by the exercise of ordinary diligence said facts might have been known to them. That nevertheless the said servants of the defendant in charge of said work negligently, carelessly, and wrongfully ordered and directed plaintiff to drive said Texas steer into the pens of defendant at said station of Marthasville. That, being so ordered and required to do said work, and being ignorant as aforesaid of the danger attendant upon the same, and relying upon defendant that it would protect plaintiff, and not expose him to unnecessary danger, this plaintiff undertook to assist in said work. That while doing so, and without any fault on plaintiff's part, this plaintiff was viciously attacked and set upon by said Texas steer, whereby plaintiff's life was greatly endangered, and that, in attempting to escape from said animal and save his life, he fell over a steep and precipitous bank, and was greatly injured," etc. The answer admits the wreck, the escape of the cattle, the plaintiff's relation to it as section hand, and that after the wreck the plaintiff was engaged in clearing up the wreck and in looking after and caring for the cattle, and avers that such work was within the line of the plaintiff's ordinary duty as a section hand. The answer then proceeds as follows: "Defendant farther states that a large part of its business is the transportation of Texas cattle from Texas to points in Missouri and elsewhere; and defendant admits that all Texas cattle are, by nature, wild and vicious, and dangerous to handle, and that such qualities of Texas steers, as a class, is a matter of general notoriety and of common knowledge among all persons. Farther answering, defendant says that there is always more or less risk and hazard connected with the duties of a section hand, and especially in and about the work necessary to be done in cases of wreck, and in the matter of collecting and restraining Texas cattle which may have escaped therefrom, all of which is, and at the time mentioned in the petition was, a matter of general notoriety, and of and concerning which the opportunity to know was open to all persons alike." The answer then pleads assumption of risks, a general denial of all matters alleged and not admitted, and contributory negligence, in that the plaintiff unnecessarily, carelessly, and recklessly assaulted the aggravated steer mentioned in the petition, and in like manner placed himself in front of and near the steer, and refused to move, when he could easily have done so and have averted the injury. The reply denies all the allegations of the answer not admitted, and then pleads...