Eliot v. Kansas City, Ft. Scott & Memphis Railroad Company

• Citation: 102 S.W. 532,204 Mo. 1
• Parties: FANNIE E. ELIOT v. KANSAS CITY, FT. SCOTT & MEMPHIS RAILROAD COMPANY, Appellant
• Decision Date: 14 May 1907
• Court: United States State Supreme Court of Missouri

102 S.W. 532

204 Mo. 1

FANNIE E. ELIOT v. KANSAS CITY, FT. SCOTT & MEMPHIS RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 14, 1907

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Reversed.

L. F Parker and I. P. Dana for appellant.

The court should have directed a verdict for defendant for each of the following reasons: (a) There was no proof that the death of plaintiff's husband was caused as charged in the petition, or by negligence of defendant in any respect. (b) The testimony showed that his injuries were due to his own carelessness, or at best resulted from his voluntarily taking unnecessary chances in doing his work. (c) His injuries and death were in law accidental. Plaintiff failed to overcome the presumption existing in favor of defendant that it had discharged its full duty to her husband. Wood's Master & Servant, sec. 382; Covey v. Railroad, 86 Mo. 635; O'Malley v. Railroad, 113 Mo. 319; Murray v Railroad, 101 Mo. 236; 2 Thompson on Negligence, p 1053, sec. 48; Gurley v. Railroad, 104 Mo. 223; Hudson v. Railroad, 101 Mo. 13; Webb's Pollock on Torts, 545. The mere fact of an injury did not overcome this presumption. Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. 115. There is no evidence of anything unusual, unsafe or out of the ordinary course with reference to any of defendant's appliances, beyond the mere fact that plaintiff's husband's hand was injured. Defendant was not bound to furnish any particular kind of appliances. Grattis v. Railroad, 153 Mo. 404; Cothorn v. Packing Co., 98 Mo.App. 343; Friel v. Railroad, 115 Mo. 503; Lane v. Railroad, 64 Kan. 755; Webb's Pollock on Torts, p. 11. Deceased was free to do the work in his own way, and it was his duty to choose the safest way. Defendant no more assumed the risk of his choosing a dangerous way to work with appliances which could be used safely than he assumed the risk of defendant's furnishing him with unsafe appliances. Kelley v. Lawrence, 195 Mo. 87; Bailey on Master & Servant, sec. 1123; Hurst v. Railroad, 163 Mo. 309; Hulett v. Railroad, 67 Mo. 239; Sparks v. Railroad, 31 Mo.App. 111; Railroad v. Arnold, 114 Ala. 183; Quironer v. Railroad, 111 Ga. 315; Pennsylvania Co. v. O'Shaughenessy, 122 Ind. 588; Ferguson v. Railroad, 100 Iowa 733. The injuries to deceased's hand were so unlikely to occur, so unusual and exceptional, so improbable of happening, that even if defendant was in any way negligent with regard to the arrangement of the appliances of the switch stand and the engine in that a man might be hurt under the circumstances attending the injuries to Mr. Eliot's hand, such lack of care was not, within the meaning of the law, the proximate cause of the injury. Or, to put it differently, it was not in a legal sense negligence not to take precautionary measures to prevent such an unlikely injury. Graney v. Railroad, 157 Mo. 683; Brewing Association v. Talbot, 141 Mo. 683; Hysell v. Swift, 78 Mo.App. 47; Mfg. Co. v. McCormick, 118 Pa. St. 519; Bowen v. Railroad, 95 Mo. 268; Fuchs v. St. Louis, 167 Mo. 620. Another way of expressing the same idea and principle is that under all the testimony in this case, the injuries to plaintiff's husband's hand and his death, when the testimony is most favorably regarded for plaintiff, were accidental. Rogers v. Printing Co., 103 Mo.App. 683; Henry v. Railroad, 76 Mo. 288; Haley v. Railroad, 179 Mo. 35.

Wm. T. Jamison and Walsh & Morrison for respondent.

(1) The motion to make petition more definite and certain and to strike out a portion thereof are not properly in the record. Nickerson v. Peery, 163 Mo. 77; Newton v. Newton, 162 Mo. 173; Bank v. Finks, 40 Mo.App. 367; Ober v. Railroad, 13 Mo.App. 81; Nichols v. Stevens, 123 Mo. 119; Paving Co. v. Ullman, 137 Mo. 564. (2) Nothing is presented by appellant's abstract for the consideration of this court except the record proper. Gramp v. Dunnivant, 23 Mo. 254; Lawson v. Mills, 150 Mo. 428; Walser v. Wear, 128 Mo. 653; Clay v. Union W. P. Co., 98 S.W. 577; Reno v. Fitz Jarrell, 163 Mo. 411. (3) The death of Mr. Eliot was caused by the negligence of defendant as charged in the petition. Dean v. Railroad, 97 S.W. 918; Boyce v. Railroad, 96 S.W. 672; Harrison v. Elec. Lt. Co., 195 Mo. 606; Hoepper v. Hotel Co., 142 Mo. 388; Flanders v. Railroad, 51 Minn. 193; Murphy v. Railroad, 115 Mo. 111; Curtis v. McNair, 173 Mo. 283; Bradley v. Railroad, 138 Mo. 302; Doyle v. Trust Co. 140 Mo. 1; Halliburton v. Railroad, 58 Mo.App. 33; Settle v. Railroad, 127 Mo. 341. (4) Deceased was not guilty of contributory negligence. Browning v. Railroad, 94 S.W. 315; Murphy v. Railroad, supra; Piette v. Brewing Co., 91 Mich. 610; Brinkmeier v. Railroad, 69 Kan. 738. (5) There was no variance or failure of proof. R. S. 1899, sec. 798; Gannon v. Gas Co., 145 Mo. 511; Morrow v. Surber, 97 Mo. 155; Palmer v. Tel. Co., 91 Mo.App. 115; Anderson v. Railroad, 161 Mo. 432. And the cause of death sufficiently appears. Walsh v. Railroad, 102 Mo. 582; Lovrain v. Railroad, 57 N.Y.S. 165; Wood v. Railroad, 181 Mo. 433. (6) The evidence shows that the injury to deceased was caused by the dangerous proximity of the blow-pipe and switch lever. Hallweg v. Telephone Co., 195 Mo. 149; Soeder v. Railroad, 100 Mo. 673; Buesching v. St. Louis Gas Lt. Co., 73 Mo. 219; Schultz v. Moon, 33 Mo.App. 329; Shore v. Bridge Co., 111 Mo.App. 278; Leeright v. Ahrens, 60 Mo.App. 118.

OPINION

BURGESS, J.

Plaintiff, the widow of B. F. Eliot, sues for five thousand dollars damages for the death of her husband, who, on the 27th day of May, 1901, while in the employ of and acting as switchman for defendant, and in the performance of his duties as such, in the yards of defendant in Kansas City, was struck and injured on the back of his hand by one of defendant's engines, from the results of which injury and other "matters and things" set forth in the petition, the said B. F. Eliot, on the 17th day of July, 1901, died. The trial resulted in a verdict and judgment for five thousand dollars in favor of the plaintiff. In due time defendant filed motions for a new trial and in arrest, which were overruled, and defendant appealed.

The suit was originally instituted against the Kansas City, Ft. Scott and Memphis Railroad Company, appellant herein, and the St. Louis and San Francisco Railroad Company, but was subsequently dismissed as to the latter.

The petition alleges the incorporation of the defendant and that on May 27, 1901, Benjamin F. Eliot, the husband of plaintiff, was in the employ of the defendant, and in such employ was acting as a switchman at a point on the tracks of the defendant near Twenty-fifth street and State Line in Kansas City, Missouri; that while in the discharge of his duties as such switchman upon said day, plaintiff's husband, while adjusting and operating a switch at said Twenty-fifth street and State Line, and while pushing or turning over the lever to operate said switch, which was necessary to enable an approaching engine belonging to the defendant to switch upon and run over and upon the proper track, and while said engine was being run, operated and controlled by the engineer thereof, who was an employee of defendant, his hand while still grasping said switch lever was struck by said engine, and thereby severely wounded, lacerated, torn and bruised at and about a point on the back thereof, immediately above the joint where the index finger is joined to the hand, and thereby the said index finger was almost severed from the said hand.

"Plaintiff further states that the said injury to the hand of the said Eliot was caused as aforesaid by the carelessness and negligence of the defendant, the Kansas City, Fort Scott & Memphis Railroad Company, in so constructing and arranging the said switch lever and the said engine and its attachments that when operated as aforesaid, they came so close together as to cause the injury as above stated.

"Plaintiff states that the said Benjamin F. Eliot had a long and continuous illness caused from the aforesaid injury, extending from the time of the said accident until on or about the 17th day of July, A. D. 1901, from which injury and illness, his life was in imminent peril and danger, and as a result of such injury it became necessary to perform a surgical operation upon the said hand in an effort to heal and cure the said injury, and in order to save his life, and as a necessary incident to the performing of the said operation, the physicians and surgeons in attendance upon him, administered to him an anaesthetic, and while under the influence of said anaesthetic, administered for the purpose aforesaid, and before the said operation could be completed the said Eliot died, his death being caused on account of the matters and things hereinbefore set forth."

It was further alleged that the St. Louis & San Francisco Railroad Company was liable for the debts of the Kansas City, Fort Scott & Memphis Railroad Company and judgment was prayed against both defendants in the sum of five thousand dollars.

The last-named defendant demurred on the ground that it was not a necessary party to the suit, and that the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court and the defendant saved an exception to the ruling.

The answer of defendant consisted of, first, a general denial; second, a general plea of contributory negligence; third, a general plea of assumption of risk.

Plaintiff's reply was a general denial of the allegations of the answer.

The only testimony in the case was that introduced by plaintiff the defendant not offering any, and the only witness who was present at the time and place of the accident was H. P. Wells, foreman on the...