Crane v. Kansas City Southern Ry. Co.

• Decision Date: 29 April 1918
• Docket Number: No. 12735.,12735.
• Citation: 199 Mo. App. 448,203 S.W. 640
• Parties: CRANE v. KANSAS CITY SOUTHERN RY. CO. et al.
• Court: Missouri Court of Appeals

203 S.W. 640

199 Mo. App. 448

CRANE v. KANSAS CITY SOUTHERN RY. CO. et al.

No. 12735.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Ray Crane against the Kansas City Southern Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Lathrop, Morrow, Fox & Moore, J. H. Lucas, and Reed & Harvey, all of Kansas City, for appellants. Guthrie, Gamble & Street, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury received by falling from a wagon drawn by two mules. He instituted his action against three defendants, viz. Kansas City Southern Railway Company, the St. Louis & San Francisco Railroad Company, and the Davidson Construction Company, and recovered judgment against all three in a lump sum. The railroad companies are lessor and lessee.

The construction company had plaintiff in its employ, and directed him to haul a load on the wagon over a road that led down a hill and across the Southern Railroad at a public crossing not quite at the bottom of the hill, to a point beyond. The wagon was equipped with the usual sized "bed." Across the bed was a hayrack extending over its sides, and on this some flat sheet iron was laid, and on top of these, towards the front, there was a metal chicken house, and some fence posts had been pushed into it. There was no brake on the wagon, and the hill was long and somewhat steep. Two mules were hitched to the wagon, and plaintiff, sitting in front on the edge of the hayrack and his feet on the doubletrees, started as directed. In going down the hill, there being no brake on the wagon, the mules could not be held back properly, and in consequence approached the crossing at too rapid a gait for a wagon loaded as this one was. The wagon struck the crossing, got over and several feet on the other side, when plaintiff fell, or was thrown therefrom to the ground, run over, and severely injured. The crossing was not such as is required by the statute. Section 1, Laws 1913, p. 696; section 10626, R. S. 1909. It had been provided with boards on each side of each rail and gravel placed between, but the boards had become worn down, and one was partly split off. So the gravel and earth adjoining and on the outside of the rail, which plaintiff approached and first struck with the wagon, had been allowed to wear away, leaving the rail itself higher above the surface than was safe. Without going into detail, it is enough to say that the rapidly moving wagon, without a brake, and its cumbersome, unsecured load, together with the rough and improper crossing, caused plaintiff to be thrown, or to fall, to the ground.

The acts of negligence alleged in the petition against the construction company are separate, viz, improper bits on the bridles, unbroken mules, failure to secure the load on the wagon, and absence of a brake. Plaintiff does not necessarily need to prove all of these; either, if a proximate cause, will suffice. There was no evidence as to the bridle bits being unfit, or that the mules were wild, and so the court instructed; but there was evidence tending to prove the allegation as to the insecurity of the load, and that there was no brake on the wagon, and this fully justified the court in refusing the peremptory instruction offered by the construction company.

There were, however, errors in the course of the trial materially affecting the merits of the case under the issues. Plaintiff was allowed to introduce evidence that he was inexperienced in the service in which he was engaged, when there was no allegation in the petition that the construction company knew it, nor was there any proof that it knew it. Batesell v. Smelting Co., 190 Mo. App. 231, 239, 176 S. W. 446; Fulwider v. Gas Co., 216 Mo. 582, 597, 116 S. W. 508. This was harmful to all of the defendants.

Plaintiff was also allowed to prove that he had been examined as to his injuries by a doctor suggested by one of the construction company's attorneys. This doctor was not called as a witness by either party, but plaintiff had introduced another doctor, who testified as to his injuries, and his object in showing the examination by the doctor suggested by defendant's attorney was that the jury might be advised that the testimony of plaintiff's doctor...