Crow v. Houck's Missouri & A. Ry. Co.

• Decision Date: 30 May 1908
• Citation: 212 Mo. 589,111 S.W. 583
• Parties: CROW v. HOUCK'S MISSOURI & A. RY. CO.
• Court: Missouri Supreme Court

111 S.W. 583

212 Mo. 589

CROW v. HOUCK'S MISSOURI & A. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

1. MASTER AND SERVANT—INJURIES TO RAILROAD ENGINEER — PLEADING — SUFFICIENCY —CONTRIBUTORY NEGLIGENCE.

The petition in a suit, for injuries to an engineer received in charge of a dead engine ordered to the shop for repairs, showed that the conductor permitted him to look it over at night while at rest at a station, and that he crawled under the trucks to repair it, without notifying any one of his intention to do so, and was at work there when the train started. Held, that in the absence of allegations showing that the permission given him carried with it permission to make repairs, and that such was the understanding, the petition must be held not to state a cause of action, because such a permission on its face does not authorize repairs, and he was otherwise guilty of contributory negligence.

2. SAME—RELATIONSHIP—QUESTION FOR JURY.

An engineer suing for injuries was directly employed by, was in the general service of, and was paid by, another road than defendant, but the two roads, while distinct and separate corporations, were operated under one general management, to whose orders he was subject, and when he was injured, he had left the road for which he worked, and, under orders of the general manager of the system, was taking to defendant's shops a disabled engine belonging to defendant. He was likewise subject to the orders and as much under control of the conductor of the train, who was employed by defendant, as was the engineer thereof. Held, that his relationship to defendant was for the jury.

3. TRIAL—INSTRUCTIONS—ASSUMING FACTS.

An instruction which assumes as true facts which are in dispute is erroneous.

4. SAME—DEPARTURE FROM ISSUES.

Where the petition alleged that plaintiff was an employé of the defendant at the time he was injured, it was error to give an instruction authorizing a recovery, even though that fact was not true.

5. TRIAL—INSTRUCTION NOT BASED ON EVIDENCE.

It is error to give an instruction not based on the evidence.

Appeal from Circuit Court, Dunklin County.

Action by Joel R. Crow against Houck's Missouri & Arkansas Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This suit was instituted to recover damages for personal injuries received by plaintiff through the alleged negligence of the defendant. The suit was brought in Scott county, and was taken on change of venue to Dunklin county, where a trial was had before the court and a jury, which resulted in a verdict and judgment for the plaintiff for the sum of $10,000. After an unsuccessful move for a new trial and in arrest of judgment, the defendant duly appealed to this court. As the sufficiency of the petition is assailed, it becomes necessary to set it out in this statement, which, after omitting the formal parts, is as follows: "That on the 8th day of November, 1901, and the day following he was in the employ of defendant railroad company as an engineer, and had charge of engine No. 4 on its said road, which he had been directed and ordered by defendant to take from the town of Morehouse to the railroad shops at the city of Cape Girardeau for repairs; that while he was on his way with his said engine under the aforesaid orders, the same became disabled between Morehouse and the station of Crowder, and he was unable to proceed further; that on the following day, November 9th, another of defendant's trains passing along said road undertook to tow plaintiff's engine No. 4 to the city of Cape Girardeau, and on reaching the station of Morley made a stop; that while said train was standing still, at about the hour of 8 o'clock at night, the conductor in charge thereof demanded to know of plaintiff whether he desired to look his engine over, and upon being told by plaintiff that he would do so if he had time, was informed by said conductor that he would have all the time he wanted, and thereupon plaintiff descended from his said engine No. 4 and began an examination thereof; that upon such examination he found that one of the bolts of the engine truck cellar had been lost, and, knowing that said engine could not safely proceed in that condition, he undertook to remedy the defect, relying upon the assurance of the conductor of said train that he would have plenty of time. And plaintiff further states that it was necessary to insert a new bolt in place of the one that had been lost, and plaintiff, for the purpose of making such repairs, took a position on the end of the ties behind the engine truck, and had his arms extended underneath the engine in the act of holding up the engine truck cellar with a hammer handle while an assistant was inserting the bolt to be put in, when, suddenly, and without notice or warning to him, defendant, by its agents having in charge and operating said towing train, carelessly and negligently caused a number of freight cars to be violently forced back against the train in which his said engine was standing, thereby causing the wheels of the engine truck to be run back rapidly, and pass over his right arm, so that the same was torn and mangled, and the bones thereof crushed from the wrist to the elbow, and plaintiff was struck by some part of the engine about the head and face and sustained painful injuries and bruises."

Defendant's amended answer contains a general denial, and then proceeds, as follows: "(2) For another and further answer defendant avers that plaintiff never was in defendant's service or employ in any capacity whatever, and that, at the time mentioned in his petition, plaintiff was merely a passenger on board defendant's freight train, with instructions from defendant's conductor and crew in charge of said freight train to stay in the caboose at the end of said train, and that such injuries as plaintiff received, if any, were caused solely by his own reckless conduct and negligence contributing directly thereto, in this, to wit, that he left said caboose at nighttime, and went to and extended his arm under an engine coupled in said freight train while cars were being switched from the side tracks and coupled with said freight train at Morley station on defendant's railroad, and thus received said injuries, all of which he did in violation of the said instructions of said train crew, and without any persons having any notice or warning of his dangerous and reckless conduct or his said dangerous position. Wherefore, defendant again prays for judgment, and that it may be dismissed with its costs. For another and further answer defendant says plaintiff never was employed by defendant as a locomotive engineer or in any other capacity, and avers that at the time mentioned in his petition plaintiff was in the service and employ of the St. Louis, Kennett & Southern Railroad Company, owning and operating a railroad separate and distinct from defendant's railroad, and that said St. Louis, Kennett & Southern Railroad Company, desiring to have one of its disabled engines repaired, engaged defendant to haul the same to the railroad shops at Cape Girardeau, and defendant had its train crew to attach said disabled engine to defendant's freight train, and, with said disabled engine attached, defendant's train crew was proceeding with said train to the city of Cape Girardeau; that on said run to Cape Girardeau plaintiff accompanied said engine, not in defendant's service or employ, but as an employé and servant of the St. Louis, Kennett & Southern Railroad Company, accompanying its said disabled engine to the Cape Girardeau shops, and that he was directed and expected by defendant's train crew to ride and remain, throughout said trip and run to Cape Girardeau, in the caboose at the end of said freight train; that such injuries as plaintiff may have received, if any, were caused solely by his own recklessness and negligence contributing directly thereto in this, to wit, that when said freight train reached the town of Morley, and said train crew were engaged in the usual and ordinary switching of cars to and from its side tracks, plaintiff, in violation of said directions of defendant's train crew, and without giving any notice or warning of any kind to any of said crew, recklessly and negligently left said caboose, and went under and began work on the trucks of said disabled engine, and that, proceeding with the usual, ordinary, and necessary switching at said town, cars were switched from the side tracks and coupled to said train on the main track, when, as the result solely of his own voluntary recklessness and negligence in leaving said caboose and going under said engine, as aforesaid, plaintiff received such injuries. Wherefore, defendant, having fully answered, again prays judgment, and that it be dismissed with its costs."

The facts of the case are few and practically undisputed, and are as follows: The defendant, Houck's Missouri & Arkansas Railway Company, was the first link in a system of railroads known as the "Houck's System," composed of various separate railroad companies, extending from Cape Girardeau, this state, to Leachville, in the state of Arkansas, with a branch to Kennett, Mo. This first link ran from the Cape to Morley. Another, named the Morley & Morehouse Railroad Company, connected those two towns. From Morehouse south to Clarkton it was known as the St. Louis, Morehouse & Southern Railroad Company. At Clarkton it connected with the branch which leads over to Kennett. This branch road was incorporated under the name of St. Louis, Kennett & Southern Railroad Company. This latter company had a road leading south from Morehouse to Leachville, upon which plaintiff was employed as an engineer, and for whom he generally worked. Each of these companies was a separate and distinct corporation, but all were operated under the same management as one system of railroad. But two of those companies figure specially in this...