Dysart v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 22 June 1898
• Court: Missouri Supreme Court
• Parties: DYSART v. KANSAS CITY, FT. S. & M. R. CO.

46 S.W. 751

145 Mo. 83

DYSART v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 1.

June 22, 1898.

MASTER AND SERVANT — FELLOW SERVANTS — NEGLIGENCE — EVIDENCE — BURDEN OF PROOF — NEW TRIAL — DISCRETION OF COURT.

1. The burden is on one claiming for injuries resulting from the negligence of a fellow servant to show want of reasonable care in employing and retaining the latter, as well as his incompetency.

2. In an action for injuries resulting to a brakeman from the negligence of the engineer, one witness stated that he would not consider the engineer as careful as the majority of those working there at the time, and mentioned an instance of his carelessness, not shown to have come to the knowledge of defendant. Two witnesses testified to an accident caused by the engineer three years before plaintiff was hurt. One witness testified that the reputation of the engineer for being cautious was bad, but could not state the year. Plaintiff had never heard of his having such a reputation. The engineer had been in defendant's employ three years, and had been a fireman and hostler for over four years, and an engineer six years. Held not to show that defendant had failed to use ordinary care in employing and retaining the engineer.

3. The setting aside of a nonsuit because of newly-discovered evidence is largely in the discretion of the trial court, and a doubt as to whether the discretion was soundly exercised is to be resolved in favor of the ruling.

Appeal from circuit court, Cass county; W. W. Wood, Judge.

Action by Claude T. Dysart against the Kansas City, Ft. Scott & Memphis Railroad Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

F. W. Gifford and W. E. Flynn, for appellant. Wallace Pratt and I. P. Dana, for respondent.

WILLIAMS, J.

Plaintiff, a brakeman on one of defendant's freight trains, while coupling the engine to the front car of said train, had his left hand very badly hurt. The injury was so serious that amputation of the arm between the wrist and elbow became necessary. The accident occurred at the town of Kenoma, in Barton county, on the 14th of February, 1892. This suit was brought by plaintiff in the circuit court of Jackson county to recover $15,000 damages on account thereof. A change of venue was granted on his application, and the case sent to Cass county. It was tried there at the May term, 1895. Defendant, at the close of plaintiff's case, offered a demurrer to the evidence, which was refused. It was renewed after all the testimony was in. The court again declined to sustain it. The matter was then submitted to the jury. They reported, after several hours, that they were unable to agree. The court thereupon withdrew all its previous instructions, and substituted one telling the jury that, under the pleadings and evidence, the verdict must be for defendant. Plaintiff took a nonsuit, with leave, etc., and in due time filed his motion to set the same aside. This was overruled; hence the present appeal.

The ground of action stated in the petition is that, as plaintiff was making the coupling between the tender and front car of the train, the engineer negligently ran the engine back against said car "with such speed, force, and violence" that plaintiff did not have time to withdraw the hand with which he was adjusting the link; that, in consequence thereof, it was caught between the "bumpers," and injured as above mentioned; that this would not have happened if the movement of the engine had been slower, as it should have been. It is further charged that said engineer was incompetent for the position, careless, negligent, and reckless, and that this was known to defendant at the time of and long prior to the accident.

Plaintiff and the engineer were fellow servants. The injury occurred in 1892. It was essential to plaintiff's case for him to show, not only the incompetency of the engineer, but also that defendant failed to exercise reasonable care in employing and retaining him in its service. Roblin v. Railroad Co., 119 Mo. 476, 24 S. W. 1011. "There is no dispute as to this proposition of law, namely, that the master must use ordinary care in employing and retaining competent and suitable servants. This is a personal duty devolved upon the master, and he is liable for failure to perform this duty, resulting in injury to a fellow servant." Williams v. Railway Co., 109 Mo. 475, 18 S. W. 1098. It is equally well established that the burden is on the plaintiff, seeking to recover for injuries caused by the negligence of a fellow servant, to show want of proper care on the part of the master in employing or retaining the latter. Roblin v. Railroad Co., 119 Mo. 476, 24 S. W. 1011. If there was a failure to make this proof, then, without reference to any other questions in the case, the instruction, which resulted in a nonsuit, was entirely proper. This brings us to the consideration of the evidence upon that point.

Plaintiff's testimony was that he had been in defendant's employ 8 or 10 months before he was hurt. He had made four or five previous trips with the engineer, who was in charge of the engine, when he was injured. He had never heard that...