Clark v. Missouri, Kansas & Texas Railway Co.

• Decision Date: 23 December 1903
• Parties: CLARK v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

77 S.W. 882

179 Mo. 66

CLARK v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

December 23, 1903

Transferred from St. Louis Court of Appeals.

Circuit court judgment reversed.

Geo. P B. Jackson for appellant.

(1) The petition does not state a cause of action, and there was no evidence tending to show any negligence in sending the plaintiff after the Texas steer as alleged in the petition. The court should, therefore, have sustained the demurrer to plaintiff's evidence. Moreover it is not alleged that defendant failed to notify or warn plaintiff of the dangerous character of the steer, if it was necessary to do so. This question may be raised for the first time in this court, but in this case it was raised by the instructions and by the motion for new trial. Smith v. Burruss, 106 Mo. 94; Lilly v. Menke, 126 Mo. 211; Benham v. Bldg Co., 60 Mo.App. 34; Childs v. Railroad, 117 Mo. 426; McPeak v. Railroad, 128 Mo. 635. (2) Even if the petition were sufficient, the plaintiff has failed to make out a case. He must establish two propositions, viz., negligence on the part of defendant, and due care on his own part. Wood's Master and Servant, sec. 382; Bailey on Master and Servant, pp. 111, 112, 113, 155 to 163, and 218 to 220; Ring v. Railroad, 112 Mo. 231; Jackson v. Railroad, 104 Mo. 456; Epperson v. Tel. Co., 50 S.W. 795; Wormell v. Railroad, 79 Me. 405. (3) There was no pretense of any notice to or knowledge by defendant that the particular steer in question was vicious. The only contention and the only evidence offered by plaintiff was to the effect that it is a matter of common knowledge and general notoriety that Texas cattle as a class are vicious and dangerous to handle, and that that was their general reputation. It was not necessary to prove that, if it was a fact. Whether proved or not, every one is presumed to know that which is a matter of general knowledge. If it was a matter of general knowledge the plaintiff is as much presumed to know it as the defendant is, and he can not recover because he did know it. On the other hand, if it is not a matter of general knowledge, then there was no proof that defendant knew it, and plaintiff can not recover because the defendant did not know that the particular animal was vicious. Earl v. Van Alstine, 8 Barb. 630; Spring Co. v. Edgar, 99 U.S. 645; Decker v. Gammon, 44 Me. 322; Grimes v. Eddy, 126 Mo. 168; 2 Wharton on Evidence, sec. 1295, note; Buswell on Per. Injuries, sec. 127; Barnum v. Terpenning, 75 Mich. 557; s. c., 42 N.W. 967; Smiley v. Dollar Store, 47 Mo.App. 402; State v. Hayes, 78 Mo. 318; Shea v. Railroad, 76 Mo.App. 31; 2 Shearman & Redfield on Negligence, secs. 629 and 690; Muller v. McKesson, 73 N.Y. 199; Wharton on Law of Negligence, secs. 907 and 909; Cooley on Torts, p. 342; Mayor v. Young, 12 Bush (Ky.) 337; Watson v. Coal Co., 52 Mo.App. 366; Walsh v. Railroad, 27 Minn. 367 (8 N.W. 145); Lucy v. Hannibal Oil Co., 129 Mo. 32. Plaintiff will not be heard to say that he did not know a fact which everyone is presumed by the law to know. Nugent v. Milling Co., 131 Mo. 252. It does not add anything to the defendant's knowledge that it was a carrier of the steer in question. A carrier is not bound to inquire or inform himself of the nature or vices of articles delivered for transportation. Parrott v. Wells, 15 Wall. 524. (4) The plaintiff wholly failed to overcome the presumptions which the law makes against him, viz.: first, that the master, the defendant, discharged its full duty to him; and second, that he assumed the risk -- or in other words, that the means of knowledge of the danger were not within his reach. Authorities cited under point 2; Wood's Law of Master and Servant, secs. 368 and 382; Agan v. Shannon, 103 Mo. 661; State ex rel. v. Bank, 120 Mo. 161; Lenox v. Harrison, 88 Mo. 491; Mathias v. O'Neill, 94 Mo. 520; Jewett v. Railroad, 50 Mo.App. 547; Bluedorn v. Railroad, 108 Mo. 448; Stepp v. Railroad, 85 Mo. 229; Petty v. Railroad, 88 Mo. 306; Schlereth v. Railroad, 96 Mo. 509; Chouteau v. Railroad, 122 Mo. 375; 1 Shearman & Redfield on Negligence, sec. 203; Epperson v. Postal Tel. Co., 50 S.W. 795; Bailey on Master and Servant, pp. 158 to 160, and pp. 112, and note, and 113, and pp. 155 to 163; Fugler v. Bothe, 117 Mo. 500; Watson v. Coal Co., 52 Mo.App. 366; Pratt v. Prouty, 26 N.E. 1002; Smith v. Car Works, 27 N.W. 662; Lyttle v. Railroad, 47 N.W. 573; Foley v. Railroad, 48 Mich. 622; Claybaugh v. Railroad, 56 Mo.App. 630; Alcorn v. Railroad, 108 Mo. 81; Bering v. Medart, 56 Mo.App. 443; Renfro v. Railroad, 86 Mo. 309; Rasmussan v. Railroad, 21 N.W. 583; Morse v. Railroad, 16 N.W. 358; Bryant v. Railroad, 29 N.W. 679; Derr v. Railroad, 27 A. 1002; Naylor v. Railroad, 53 Wis. 661; Howland v. Railroad, 54 Wis. 226; Longstad v. Railroad, 41 N.W. 755; Reed v. Stockmeyer, 74 F. 186. (5) Neither the alleged negligence, viz., that defendant "carelessly and wrongfully ordered and directed plaintiff to drive said Texas steer into the pens of defendant," nor the negligence suggested by plaintiff's evidence and instructions, viz., that defendant failed to notify plaintiff of the dangerous character of the steer, was the proximate cause of plaintiff's injury. 1 Sedgwick on Damages, sec. 122; 8 Am. and Eng. Ency. of Law (2 Ed.), 601; 1 Shearman & Redfield on Negligence (5 Ed.), chap. 2; Hudson v. Railroad, 101 Mo. 34; Buswell on Personal Injuries (2 Ed.), p. 155; Brink v. Railroad, 17 Mo.App. 199; Banks v. Railroad, 40 Mo.App. 464; Henry v. Railroad, 76 Mo. 293; Sira v. Railroad, 115 Mo. 127; Clemmons v. Railroad, 53 Mo. 366; Brown v. Railroad, 20 Mo.App. 227; Christy v. Hughes, 24 Mo.App. 277; Hicks v. Railroad, 46 Mo.App. 309.

Rosenberger & Son, J. D. Barnett and H. W. Johnson for respondent.

(1) Plaintiff has made out a case when he has established negligence on the part of the defendant, due care on his part and injury directly resulting from defendant's negligence. All of these matters are issues of fact, are supported by sufficient evidence, and, having been fairly submitted to the jury, will not be disturbed by this court. (2) Defendant by reason of its business, and as shown by its own admission, had due knowledge of the fact that Texas cattle as a class are vicious and dangerous, and that, as a result of injury or excitement, they are liable to become excitable and more wild, vicious and dangerous than ordinarily. This fact was known to defendant. It was not known to plaintiff, and it was not shown by any evidence in the case to be a matter of common knowledge or general notoriety. (3) Defendant is bound by the knowledge which it had that Texas cattle, excited as the result of a wreck, are dangerous and vicious animals. There is no presumption that plaintiff had any such knowledge. Texas cattle have no general reputation in the State of Missouri. The evidence negatives the fact of any general reputation. (4) Defendant having knowledge of the peculiar conditions surrounding the particular animal when it escaped from the wreck, and having knowledge that as a result of the wreck it was especially liable to be wild and ferocious, had knowledge which was not communicated to plaintiff, and which should have been communicated to him, had there been a due regard for plaintiff's safety. (5) The immediate cause of plaintiff's injury was the attack of the steer. The promoting or first cause was the possession of full knowledge and information of the risk and danger incident to the service respondent was directed to perform, and the failure, neglect and omission of appellant to caution or warn him of such risk and danger at or prior to the time he was directed to perform the service. Barry v. Railroad, 98 Mo. 70; Wilkins v. Railroad, 101 Mo. 106. (6) Plaintiff had absolutely no knowledge or information of the danger or risk of the service he was directed to perform, while defendant was fully possessed of such knowledge or information, and failed, neglected and omitted to communicate same to plaintiff or utter a single word of caution or warning. Upon these facts the case was properly submitted to the jury and the finding was responsive to the law and the facts. Doyle v. Railroad, 140 Mo. 1. (7) When plaintiff found himself suddenly exposed to great danger, he was only required to do what he thought was best for his safety. This he did, and in doing so is not to be charged with negligence. Adams v. Railroad, 74 Mo. 560; Segrist v. Arnot, 86 Mo. 208. (8) Plaintiff is not to be charged with negligence because when exposed to sudden and immediate danger he did not adopt the safest and best course to avoid injury. It is sufficient if he adopted the means he thought best for his safety. Dickerson v. Railroad, 124 Mo. 140; Adams v. Railroad, supra; Segrist v. Arnot, supra. (9) The servant has a right to presume that the master will not send him into a dangerous place or to perform a service attended with unusual risk or danger without apprising him of the risk or danger incident to the service. Doyle v. Railroad, supra. (10) The question is, did plaintiff know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the service was dangerous or attended with great risk? Cook v. Railroad, 34 Minn. 45; Sullivan v. Railroad, 107 Mo. 66; Doyle v. Railroad, supra.

OPINION

MARSHALL, J.

This is an action for personal injuries. The plaintiff recovered twenty-five hundred dollars 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 the 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...