Dean v. Kansas City, St. L. & C. R. Co.

• Decision Date: 21 November 1906
• Citation: 97 S.W. 910,199 Mo. 386
• Court: Missouri Supreme Court
• Parties: DEAN v. KANSAS CITY, ST. L. & C. R. CO.

97 S.W. 910

199 Mo. 386

DEAN v. KANSAS CITY, ST. L. & C. R. CO.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

1. DAMAGES—ELEMENTS OF COMPENSATION— FUTURE SUFFERING—INSTRUCTION.

Though a recovery for future pain and anguish should be limited to such as would reasonably or probably result from the injuries proved, an instruction authorizing a recovery for pain and anguish "which plaintiff may hereafter suffer and endure" was not erroneous where the instruction elsewhere limited the damages for future pain and suffering to those shown by the evidence on account of the injuries.

2. SAME—FUTURE EARNINGS—EVIDENCE.

Evidence that plaintiff, prior to the personal injuries sued for, was a working man in good health, earning $1.10 a day, and that by reason of his injuries he had been unable to labor up to the time of the trial, and the injury to his knee was not only serious, but permanent in character, was sufficient to authorize the jury to take into consideration the loss of future earnings as an element of damages.

3. APPEAL—HARMLESS ERROR—INSTRUCTIONS.

An ambiguous instruction on behalf of plaintiff, in an action for injuries to a servant, as to the assumption of risk, which, in so far as it announced any proposition of law, was more favorable to defendant than the strict law, was not ground for reversal.

4. TRIAL — RECEPTION OF EVIDENCE — OBJECTIONS—SUFFICIENCY.

In an action for injuries to a sectionman by a piece of coal thrown from the tender of a train, an objection to evidence of the condition of the track six months before the injury, on the ground that it was immaterial, was insufficient to sustain a contention that the evidence was too remote.

5. MASTER AND SERVANT—INJURIES TO SERVANT — EVIDENCE — CONDITIONS PRECEDING INJURY.

In an action for injuries to a sectionman by a piece of coal thrown from the tender of a passenger train, evidence of the condition of the railroad track six months before the injury was not too remote, especially where it was followed by evidence showing that the same condition continued down to the time of the injury.

6. DAMAGES—EXCESSIVE DAMAGES—PERSONAL INJURIES.

An award of $5,000 damages for injuries to a sectionman by a piece of coal thrown from the tender of a passing train, striking his knee and knocking him down, rendering him unable to do any work or to walk without artificial aid, resulting in inflammation, swelling, pain, and sleeplessness, and requiring the expenditure of several hundred dollars for medical aid, was not excessive.

7. MASTER AND SERVANT—INJURIES TO SERVANT — ASSUMPTION OF RISK — QUESTION OF LAW OR OF FACT.

The danger to a sectionman of being wounded by coal flying from a tender piled from eight inches to a foot above its rim, and going at a rate of 45 to 60 miles an hour over bad steel rails, laid unevenly on indifferent ties, is not, as matter of law, an ordinary risk which he assumes.

8. SAME—NEGLIGENCE OF MASTER.

Where a passenger train ran through a country district at a rate of 45 to 60 miles an hour over a track in bad condition, with a tender piled with coal from eight inches to a foot above its rim, and a sectionman was injured by a piece of coal thrown from the tender, the railroad company was not, as a matter of law, free from negligence.

9. SAME—INEVITABLE ACCIDENT.

An injury to a sectionman from a piece of coal thrown from the tender of a passing train was not, as matter of law, one which no man of ordinary prudence could reasonably anticipate so as to bring it within the law relating to inevitable accident.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by T. T. Dean against the Kansas City, St. Louis & Chicago Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Richard Field and Scarritt, Griffith & Jones, for appellant. John Welborn and Charles Lyons, for respondent.

LAMM, J.

The defendant is a domestic corporation and owns the right of way, roadbed, and track of a railroad running from Mexico, Mo., through Lafayette county to Kansas City. The Chicago & Alton Railroad Company is an Illinois corporation, and in 1872 took over defendant's said property under a lease, said to be for 1,000 years. Later another foreign corporation, the Chicago & Alton Railway Company, became sublessee under a term of 99 years, and on the 19th day of February, 1902, was running and operating its trains on said railroad through its own servants. Plaintiff was a section hand on said line in the employ of said sublessee. On said date about one mile and a half west of Bates City, a station on said line, one of its passenger trains, running at a great speed, approached the place plaintiff was at work. Plaintiff stepped 15 feet to one side to allow said train to go by, and, while awaiting its passage, was struck on the left knee by a piece of coal, hurled from the tender of the locomotive, and seriously injured. He sued the Kansas City, St. Louis & Chicago Railroad Company for damages sounding in tort, recovered $5,000, and the company appeals.

1. The liability of defendant, lessor, for the negligence of its sublessee, the Chicago & Alton Railway Company, is based upon section 1060, Rev. St. 1899, providing, among other things, that: "* * * And a corporation in this state leasing its road to a corporation of another state, or licensing or permitting a corporation of another state, under any running arrangements, to run engines and cars upon its road in this state, shall remain liable as if it had operated the road itself," etc. Due steps were taken by answer and instructions (offered but refused) to present and preserve a constitutional question, to wit, that said statute "is unconstitutional and void, and assumes to give plaintiff a cause of action against defendant without due process of law, * * * and in that it attempts to impose on defendant the obligation of another, without defendant's consent, and thereby violates sections 4, 10, 15, and 30, of article 2 and section 53 of article 4 of the Constitution of Missouri, and the fourteenth amendment of the Constitution of the United States." The statute thus assailed has long been in force. Laws 1870, p. 90. It proceeds on the theory that the franchises and powers of a railroad company are, in a large measure, designed to be exercised for the public good, and this exercise of them is the consideration for granting them, and that a contract by which such railroad company renders itself incapable of performing its duty to the public, or attempts to absolve itself from its obligation, without the consent of the state, violates its charter and is forbidden by public policy, and hence is void. Thomas v. Railroad, 101 U. S. 71, 25 L. Ed. 950. The right to lease, arising only by consent of the Legislature, is subject to legislative terms imposed. Smith v. Railroad, 61 Mo. 1; State ex rel. v. Railroad, 89 Mo. 534, 535, 14 S. W. 522; Markey v. Railroad, 185 Mo. 348, 84 S. W. 61. The statute in question, prescribing the terms upon which a railroad lease may exist, having been held valid in Markey v. Railroad, supra, a case in which the opinion was handed down in December, 1904, after the trial nisi in the case at bar, appellant, as we understand the submission here, has abandoned its constitutional point and does not seek to disturb or reagitate our settled construction of that statute, but, if not abandoned, it must be overruled.

2. The answer pleaded the contributory negligence of plaintiff. The only theory upon which plaintiff's negligence could be urged is that he remained too close to the passing train. The evidence shows he went farther away than sectionmen usually go to let trains go by. The issue of contributory negligence was submitted to the jury and the jury found plaintiff was exercising due care. We do not gather, from the brief of appellant's learned counsel, that they now assert any error in that submission, or that the verdict is subject to legal criticism on that score. Hence we may put that matter away from us.

3. Plaintiff's instructions are made a target for shafts of criticism, and prejudicial error is assigned in the giving of them. Therefore it may be as well to set forth the instructions on both sides and let them speak for themselves.

For plaintiff, the following instructions were allowed: "(1) The court instructs the jury that, if you believe from the evidence that on or about the 19th day of February, 1902, the plaintiff was in the employ and service of the Chicago & Alton Railway Company, as a common laborer, and was, on that date, engaged in repairing the track of the defendant's road at a point on said road about one and one-half miles west of Bates City, Lafayette county, Mo., and that the Chicago & Alton Railway Company, its agents and servants running and operating its cars and trains along and over said road at said point knew, or by the exercise of ordinary care could have known, that the plaintiff was so engaged, and the plaintiff, while in the exercise of ordinary care on his part, was injured by a lump of coal thrown and hurled from a passing train managed, operated, and controlled by the Chicago & Alton Railway Company, its agents and servants, and that the Chicago & Alton Railway Company, its agents and servants, negligently and carelessly had piled, placed, heaped, and permitted lumps and quantities of coal to be and remain in unsafe, insecure, defective, and dangerous places, positions, and receptacles in and about its said engine and train of cars, if you find and believe from the evidence that such places, position, and receptacles were unsafe, insecure, defective, and dangerous, and negligently and carelessly ran and operated its said engine and train of cars at a high and excessive rate of speed, if you find and believe from the evidence that the rate of speed, under the circumstances, was high and excessive, along, upon and over a rough, uneven track, if you believe from the...