Coontz v. The Missouri Pacific Railway Company

• Decision Date: 16 May 1893
• Citation: 22 S.W. 572,115 Mo. 669
• Parties: Coontz v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

22 S.W. 572

115 Mo. 669

Coontz v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 16, 1893

Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.

The instruction referred to in the opinion on the measure of damages is as follows: "If the jury under the evidence and instruction of the court, find in favor of the plaintiff they should assess his damages at such a sum as they believe from the evidence will be a fair compensation to him. First for any pain of body or mind. Second, for any loss or damage by reason of disability to labor. Third, for any physical maiming or crippling apart from pain of body or mind, and apart from loss from disability to labor. Fourth, for any expenses necessarily incurred for medical attention which the jury may believe from the evidence the plaintiff has sustained or will sustain by reason of said injury and necessarily caused thereby, not exceeding $ 20,000."

Reversed and Remanded.

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

(1) Plaintiff as conductor of the "pusher" engine, and Leathers the engineer thereof, were fellow-servants, and if the engineer's negligence was the proximate cause of the accident, and the consequent injury to plaintiff, he cannot recover. It follows that the instructions prayed by the defendant and refused by the court should have been given. McKinney on Fellow-Servants, p. 282; Ragsdale v. Railroad, 62 Tenn. 426; Railroad v. Martin, 17 American and English Railway 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) The petition contains no allegation of a loss of earnings, as a consequence of the injury received. It was therefore error for the trial court to admit evidence, against defendant's specific objection, that plaintiff's salary, at the time he was injured, was $ 75 per month, and that during the twenty-five months that intervened between the injury and the trial, he had earned nothing. Mellor v. Railroad, 105 Mo. 455, on pages 462 and 464 and authorities cited and page 470. (3) Plaintiff's instruction given improperly defines the measure of damages. It in effect directs the jury to compensate plaintiff for any maiming or crippling apart from pain of body and mind; and next to compensate him for any pain of body or mind. This is equivalent to instructing the jury to compensate the plaintiff for mental pain, whether the same resulted from his physical injuries or not. Such is not the law. Sedgwick on Damages [8 Ed.] sec. 44, and authorities cited; Russell v. Tel. Co., 3 Dak. 315; Burnett v. Tel. Co., 39 Mo.App. 599; loc. cit. p. 610. (4) It is error to give an instruction which enlarges the issues or which is broader than the issues. Waddingham v. Hulett, 92 Mo. 528; Gessley v. Railroad, 26 Mo.App. 156; Hasset v. Rust, 64 Mo. 325; Abbott v. Railroad, 83 Mo. 273; Taylor v. Railroad, 28 Mo.App. 552; Bank v. Murdock, 62 Mo. 70. (5) There is no negligence shown. The only evidence of any negligence on defendant's behalf, or any of its employes, 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.

A. R. Taylor for respondent.

(1) The evidence strongly sustains the verdict, as shown above. It is a duty owed by the master to the servant to use ordinary care to provide his servant with appliances reasonably suitable and safe for the servant to work with in the discharge of the duties of his employment, and also to use such care to keep such appliances in repair. This is a duty which the law raises by virtue of the contract of employment, and has not been questioned by any enlightened judicial tribunal of late years. Wood's Master and Servant [Ed. 1877] sec. 329, p. 687; Railroad v. Herbert, 116 U.S. 648. (2) This duty of the master to use such care to provide his servant with suitable appliances, and to keep the same in repair, is an absolute duty; and to whomsoever the master delegates the performance of such duty, such delegate is the vice-principal of the master in the performance of said duty, or in omitting to perform said duty. Railroad v. Herbert, 116 U.S. 648; 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; Shanny v. Mill Co., 66 Me. 420; Bessex v. Railroad, 45 Wis. 477. (3) There was no error in admitting, under the allegations of the petition, evidence as to the damages sustained by plaintiff by reason of the disability to labor caused by the injury; the petition specifically charges his permanent disability to labor as one of the elements of damages.

OPINION

Burgess, J.

This is an action for personal injuries. The plaintiff was, at the time of the accident, an employe of defendant and in discharge of his duties as a conductor of an engine used as a pusher.

The negligence complained of on the part of defendant, which is alleged to have been the cause of the accident and consequent injury, is, "that at the time of said injury, said engine and tender were greatly worn and in a dangerous and defective condition; that the wheel or truck of the tender was worn out and defective and crooked, and the material of said wheel had sand holes in it, thereby weakening it and making it defective and insufficient for the use to which defendant was applying it. And the coupling apparatus of said engine and tender was worn out and defective and insufficient for the purpose to which defendant was applying it; that by reason of said defects and insufficiences of said engine and tender, * * * the wheel of said tender was caused to break and said engine and tender to be derailed and plaintiff to be injured, and that defendant knew or might have known by the exercise of reasonable and ordinary care the unsafe condition of said engine and tender."

The answer was a general denial and contributory negligence by plaintiff.

The evidence shows that the accident occurred on the fifteenth day of November, 1888. At the time plaintiff was on duty as conductor of the engine and tender that caused the injury, he had been at work on the engine fifteen to eighteen months, except while it was in the shops being repaired. The work of the engine was to push trains up the grade from Pacific to Gray's Summit, and from Labadie to Gray's Summit, and to do yard work at Pacific, at Marshall's switch and at Hunt's switch.

Plaintiff's duties were to oversee switching, keep account of the cars handled and receive orders from the train dispatcher. He was hurt by being thrown to the ground. His hip was broken, and his leg was, at the time of the trial, December 11, 1890 from two and a quarter...