Dale ex rel. Dale v. St. Louis, Kansas City & Northern R.R. Co.

• Citation: 63 Mo. 455
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 October 1876
• Parties: GEORGE P. DALE, BY HIS NEXT FRIEND, SOPHIA N. DALE, Respondent, v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

63 Mo. 455

GEORGE P. DALE, BY HIS NEXT FRIEND, SOPHIA N. DALE, Respondent,

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from St. Louis Circuit Court.

Blodgett & Woodson, for Appellant.

I. If plaintiff “well knew of the condition of the defendant's railroad track, and of the character and hazards of the service in which he was engaged,” he cannot recover. (Sherm. & Redf. Negl., 119, 120, § 94, and notes; Devitt vs. Pac. R. R., 50 Mo. 302, and authorities cited.)

II. The second instruction given plaintiff by the court should have been refused. It should not have been given, because it was not supported by the evidence, and was therefore calculated to mislead, and was not a fair presentation of the case upon the evidence.

III. The evidence shows that the injuries of plaintiff can be better attributed to the recklessness and carelessness of the plaintiff's fellow servant, Chapin, the engineer, than to a failure of the defendant “to provide a proper and safe railroad track.”

IV. Counsel referred in argument to: Ill. Cent. R. R. Co. vs. Welch, 52 Ill. 183; McKean vs. C. & R. I. Rl'y, 40 Ill. 218; City of Decatur vs. Fisher, 53 Ill. 407; Walker vs. Martin, 52 Ill. 347; Walker vs. Martin, 43 Ill. 508; C. B. & Q. R. R. Co. vs. Parks, 18 Ill. 460; C. &. N. W. Rl'y Co. vs. Fillmore, 57 Ill. 267; Lockwood vs. Onion, 56 Ill. 506; Diblin vs. Murphy, 3 Sandf 19; Hunt vs. C. & N. W. Rl'y Co., 26 Ia. 363; Duray vs. C. & N. W. Rl'y Co., 31 Ia. 375; U. P. Rl'y vs. Hand, 7 Kas. 380; Tansey vs. N. J. & B. Co., 5 Lansing [N. Y.], 507; Richards vs. Sanford, 2 E. D. Smith [N. Y.], 349; Collins vs. A. & S. Rl'y Co., 12 Barb. 492; Murray vs. H. R. R. R. Co., 47 Barb. 196; Ford vs. Ward, 26 Ark. 360; R. R. vs. Statham, 42 Miss. 607; Belknap vs. R. R., 49 N. H. 359; Gleason vs. In. of Bremen, 50 Me. 222; Jacobs vs. Bangor, 16 Me. 191.)

Leverett Bell, for Respondent.

I. As between a railroad company and its servants, the law imposes on the former the duty of providing suitable machinery and appliances. (Gibson vs. Pac. R. R., 46 Mo. 169.)

“The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant, and of resulting injury to himself. Having done this he is entitled to recover, unless the defendant produces evidence sufficient to rebut the presumption.” * * * * * “If the facts proved make it probable that the defendant violated his duty, it is for the jury to decide whether he did so or not. To hold otherwise would be to deny the value of circumstantial evidence.” (Shearm. & Redf. Negl. § 12.)

The master is liable as to defects unknown to the servant, of which the master may not have been cognizant, but which it was his duty to have searched for, and remedied. (Whart. Negl., § 211.)

“The burden of proof is on the employee to show both the negligence of the employer, and his own care. But he is not bound to do more than raise a reasonable presumption of negligence on the part of the defendant.” (Whart. Negl. § 428.) This is also the law of Massachusetts, New York, Vermont, Ohio, Illinois and Iowa. (Gillman vs. Eastern R. R. 10 Allen, 233; 13 Allen, 433; Coombs vs. Cordage Co., 102 Mass. 596; Huddleston vs. Lowell Machine Shop, 106 Mass. 282; Ford vs. Fitchburg R. R. Co., 110 Mass. 255; Ryan vs. Fowler, 24 N. Y. 410; Wright vs. N. Y. C. R. R., 25 N. Y. 566; Brickner vs. N. Y. C. R. R., 2 Lansing, 506; 49 N. Y. 672; Lanning vs. N. Y. C. R. R., 49 N. Y. 521; Noyes vs. Smith, 28 Vt. 59, 61; McGatrick vs. Woson, 4 Ohio St. 575; C. & A. R. R. vs. Shannon, 43 Ill. 345; Chicago & C. R. R. vs. Swett, 45 Ill. 203; C. & N. R. R. vs. Jackson, 55 Ill. 496; T. & W. R. R. vs. Conroy, 61 Ill. 163; C. & A. R. R. vs. Sullivan, 63 Ill. 295; C. & N. W. R. R. vs. Taylor, publ. in vol. 6, Chicago Legal News, p. 86; Greenleaf vs. Ill. Cent. R. R., 29 Iowa, 46.)

II. Authorities are numerous to the point, that in this action knowledge on the part of the plaintiff of the defect complained of, is not of itself, in point of law, an answer to the action. It is an element to be taken into consideration in determining whether plaintiff has been guilty of negligence by continuing in defendant's service with knowledge of the danger, but it is nothing more; under such proof the question must be submitted to the jury. (Clarke vs. Holmes, 7 Hurls. and Norm. 937, 944, 945, 949; Hoey vs. D. & B. R. W. Co., 5 Ir. R. C. L. 206; Lanning vs. N. Y. Cent. R. R., 49 N. Y. 536; Huddeston vs. Lowell Machine Shop, 106 Mass. 286.)

NAPTON, Judge, delivered the opinion of the court.

This action was brought by a fireman of an engine on the St. Louis, K. C. & N. R. R., to recover damages for an injury to him by reason of the failure of the defendant to provide a safe railroad track upon which to run the engine and train. The defense was that the plaintiff knew the condition of the track upon which he worked, and continued to work on it, knowing its condition, and therefore the damage was the result of his own negligence. Upon the conclusion of the plaintiff's evidence at the trial, the defendant asked an instruction in the nature of a demurrer to the evidence, which was refused; and the court instructed the jury that “if the jury find from the evidence in this case that plaintiff received the injuries complained of by reason of the unsafe condition of defendant's railroad track, and the defendant knew of the condition of its railroad track, or might have known thereof by the exercise of reasonable care and diligence, they are instructed that defendant is liable to plaintiff for any injuries he has received in consequence of the condition of the track after it was known, or ought to have been known by defendant, if they further believe that plaintiff was exercising ordinary care and prudence at the time he received the injuries, and did not know of the unsafe condition of said railroad track, and that the same was not due to the carelessness of any fellow-servant of the plaintiff.”

The cases of Gibson vs. Pac. R. R. Co., 46 Mo. 167; Devitt vs. Mo. Pa. R. R., 50 Mo. 305; Cummings vs. Collins, 61 Mo. 522, are sufficient to explain the views of this court in regard to the points of law assumed in this instruction and any extended review of the matter here, is deemed unnecessary. It is obvious that the instruction which is copied almost literally from the opinion in Gibson vs. Pac. R. R., would not have been prejudicial to the defendant

The main point, however, of objection here, is that the court on the conclusion of plaintiff's evidence, did not so instruct the jury as to require a non-suit, and this is based upon the assumption that the evidence showed that the plaintiff had been for two years and upwards in the employment of the defendant, and four months previous to the accident, had been passing...