Coontz v. The Missouri Pacific Railway Company

• Decision Date: 14 May 1894
• Parties: Coontz v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

26 S.W. 661

121 Mo. 652

Coontz v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

H. S Priest and Wm. S. Shirk for appellant.

(1) The court below erred in refusing to give defendant's instruction, in the nature of a demurrer to plaintiff's evidence, at the close of his case. If the engineer negligently performed this duty, it was the negligence of a fellow servant of plaintiff, and he can not recover. McKinney on Fellow Servants, p. 282; Ragsdale v. Railroad, 62 Tenn. 426; Railroad v. Martin, 17 Am. and Eng. R. R Cases, 592; McDonald v. Railroad, 18 N.Y.S. (Sup.) Rep. 609; Dodge v. Railroad, 29 N.E. 1086; Higgins v. Railroad, 104 Mo. 413; Sherrin v Railroad, 103 Mo. 378. (2) It is universally held that a conductor can not recover for the negligence of a brakeman working under him, for the reason that the brakeman is the subordinate of the conductor. So it is with the engineer, and so the evidence shows in this case. The same rule should apply to the negligence of one subordinate as to another. As to negligence of brakeman, see McKinney on Fellow Servants, p. 267, and list of cases cited in note 4; Pilkenton v. Railroad, 7 S.W. 805; Railroad v. Andrews, 50 F. 728; Randall v. Railroad, 109 U.S. 322; Ragsdale v. Railroad, 62 Tenn. 426. (3) There is no negligence shown. The engine had been in the shops at St. Louis for repairs about a month or six weeks before. The engineer examined and inspected the engine every morning, and the very morning of the accident he made the regular examination, and looked the engine over to see if it was all right. The only evidence of any negligence on defendant's behalf, or any of its employees, is the mere fact that the accident occurred. This is not sufficient evidence of negligence. Elliott v. Railroad, 67 Mo. 272; Murphy v. Railroad, 71 Mo. 202; Huffman v. Railroad, 78 Mo. 54; Gutridge v. Railroad, 94 Mo. 468; Railroad v. Hughes, 119 Pa. St. 301. (4) The court erred in refusing to allow the witness Leathers to testify that engines, tenders and cars frequently leave the track without any ascertainable cause. It tended to throw light upon the question, whether, if there was a crack in the wheel, it was the cause of the tender leaving the track or not. (5) The verdict of the jury is so grossly against the evidence and the weight of the evidence, that it should not be allowed to stand. There can be but one cause for its rendition, viz., passion or prejudice on the part of the jury. The verdict is not based upon any substantial evidence whatever. Reid v. Life Ins. Co., 58 Mo. 421; Bank v. Armstrong, 92 Mo. 265; Hepley v. Railroad, 88 Mo. 348; St. L. B. Co. v. Bodeman, 12 Mo.App. 573; Clark v. Hairly, 30 Mo.App. 335; Peck v. Railroad, 3 Mo.App. 125; Whitsett v. Ransome, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 74; Thrings v. Railroad, 7 Robertson (N. Y.), 616.

A. R. Taylor for respondent.

(1) It was the engineer's duty to inspect and repair the machinery of the engine when on the road, and this was a duty the defendant as master owed to the plaintiff. O'Mellia v. Railroad, 115 Mo. 211. (2) The foregoing duty the defendant could not delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servant can be transferred so as to exonerate him from such liability. Railroad v. Herbert, 116 U.S. 647; Flike v. Railroad, 53 N.Y. 549; Corcoran v. Holbrook, 59 N.Y. 517; Fuller v. Jewett, 80 N.Y. 46; Pantzer v. Iron Co., 99 N.Y. 368; Ford v. Railroad, 110 Mass. 240; Shanney v. Mill Co., 66 Maine, 420; Bessex v. Railroad, 45 Wis. 477; Railroad v. Conroy, 68 Ill. 560; Drymola v. Thompson, 26 Minn. 40; Blanton v. Dold, 109 Mo. 75; Gutridge v. Railroad, 105 Mo. 528; Bowen v. Railroad, 95 Mo. 278; Browning v. Railroad, 24 S.W. 731. (3) Of course, where the master delegates the duty of inspection and repair to a servant, if, by the exercise of due care in inspection such servant could have discovered such defect, then such fact imparts notice to the defendant master. Covey v. Railroad, 86 Mo. 641; Porter v. Railroad, 71 Mo. 79.

OPINION

Black, P. J.

This is an action for personal damages. The pleadings are the same as they were when the case was here on a former appeal (115 Mo. 669), with the exception that the petition was amended so as to admit evidence of loss of earnings. The case was submitted to the jury on the last trial on these issues: whether the wheel of the engine tender was cracked so as to render it unfit for use, and whether the defendant knew, or by the exercise of ordinary care might have known, of the unsafe condition of the wheel in time to have repaired it, and thereby avoided the injury. All other issues tendered by the petition were instructed out of the case.

The assigned errors to be considered are: that the court erred in overruling the defendant's demurrer to the plaintiff's evidence; that the verdict, which was for plaintiff, is in flagrant disregard of the evidence; and that the negligence shown, if any, was the negligence of a fellow servant.

At the time of the accident the plaintiff was in the employ of the defendant as conductor on an engine used to push trains over a hill between Pacific and Labadie. The crew was composed of himself, an engineer, a fireman and brakeman. In going west from Pacific to meet a train at Labadie the flange of a wheel of the tender broke and the engine and tender were thrown from the track and down an embankment, breaking the plaintiff's hip. The engine was used both day and night, the plaintiff being the conductor of the day crew. At the time of the accident the engine was running on an up grade at twenty or thirty-five miles per hour with the tender in front. The plaintiff had nothing to do with the machinery. It was the duty of the engineer to inspect the engine and see that it was in repair and fit for use. The engine had not been in the shops for a general overhauling for a year and over, though it had been in the shops for some repairs ten days or two weeks before the accident.

For the plaintiff Mal Hollard gave evidence to the following effect: He and Coleman and Jackson went to the place of the accident fifteen or twenty minutes after the accident occurred. They walked along the track in the direction in which the engine was moving when derailed. They found on the track a piece of iron or steel which they picked up and examined, and one of them threw it aside among the weeds. He says it was a piece of the flange of the broken wheel and was from three to six inches long. It disclosed an old rusty crack which extended into the wheel "half or three quarters of an inch or may be an inch or inch and a half." He says they found this piece of the flange before they came to the place where the ties were broken. The evidence of Jackson corroborates that of Hollard. Another witness testified that he had been a car inspector for five years. According to his evidence car wheels are inspected by sight, and also by sound from the use of a hammer. He says a crack like that described by Hollard could be discovered by sight or sound, by sight if not filled with rust, and if filled with rust and dust then by striking the wheel with a hammer.

For the defendant the day and the night engineers in charge of this engine testified that they inspected the engine and tender twice every day. They made the inspection because it was their duty to do so and for their own safety. They did not use a hammer, but examined the wheels by sight, the night engineer using a torch. They found and knew of no crack in any of the wheels. The machinery, they say, was in good repair. Two other witnesses say they found and gathered up several broken pieces of the flange. The broken parts were bright and fresh. One of them examined the wheel and found no indications of an old crack. Another witness says he inspected the wheels of the tender and engine when in the shops, ten days or two weeks before the accident. He made the inspection by going around and under the engine and tender and by throwing a torch light around the flanges and by running his hand around the flanges also. He used a torch because it was dark in the shops, or dark at least under the engine. He found no cracks or defects...