Ford v. Dickinson
| Decision Date | 20 December 1919 |
| Parties | PATRICK H. FORD v. JACOB M. DICKINSON, Receiver of CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, and ISMERT-HINCKE MILLING COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.
Reversed and remanded.
Sebree & Sebree, for appellant Jacob M. Dickinson.
Adrian F. Sherman and Thad. B. Landon for appellant Ismert-Hincke Milling Company.
(1) The court erred in overruling the demurrer of the defendant milling company at the close of plaintiff's evidence, and in refusing to peremptorily instruct the jury to return a verdict for said defendant. a. Under the pleadings and the evidence, the milling company was not guilty of negligence. Crawford v. Stockyards Co., 215 Mo. 410; Morris v. Pryor, 272 Mo. 350; Lewis v. Coal Co., 84 Kan. 333; Oplotnik v. Mining Co., 98 Kan. 356; Pankey v. A., T. & Santa Fe Ry. Co., 180 Mo.App 185; South Side Elec. Ry. Co. v. Nes-Co., 180 Mo.App. 185; South Side Elec. Ry. Co. v. Nesvig, 214 Ill. 463. (2) The evidence shows that the location of the post near the west rail of track 2 was in no way the proximate cause of plaintiff's injury. A new and independent cause, to-wit, a sag in the west rail of track 2 at or near the post in question, intervened between the action of the milling company in locating the post, and the plaintiff's injury. Kiser v. Suppe, 133 Mo.App 19; Haley v. Transit Co., 179 Mo. 30; Dickson v Ry. Co., 124 Mo. 140; Hudson v. Wabash Ry. Co., 101 Mo. 13; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Glenn v. Met. St. Ry. Co., 167 Mo. App., 109; Cole v. German Savings & Loan Society, 124 F. 113; Sec. 9850, Genl. Stat. Kan. 1909; Railway Co. v. Columbia, 65 Kan. 390; Railroad Co. v. Justice, 80 Kan. 10; Eberhardt v. Telephone Co., 91 Kan. 763; Gas Co. v. Dabney, 79 Kan. 820; Rodgers v. Ry. Co., 75 Kan. 222; Crawford v. Stockyards Co., 215 Mo. 394. (3) The court further erred in denying the demurrer of defendant milling company for the reason that there was a clear misjoinder of parties defendant, and a misjoinder of causes of action. Federal Employers' Liability Act (Act of Congress, Apr. 22, 1908, Ch. 149, 35 Stat. L. 65, 8 F. Stat. Ann. 1208); Pipes v. Mo. Pacific Ry. Co., 267 Mo. 385; Lucchetti v. Philadelphia & R. Ry. Co., 233 F. 137; Union Pacific v. Wyler, 154 U.S. 285, 39 L.Ed. 983; Bankson v. Illinois Central Ry., 196 F. 171; Sec. 1795, R. S. 1909; Beattie v. Gerardi, 166 Mo. 143; Toledo, St. Louis & W. Ry. Co. v. Slavins, 236 U.S. 455, 59 L.Ed. 454; Doyle v. St. Paul Depot Co., 134 Minn. 458. (4) The court erred in giving instruction number 2 at the request of the plaintiff. The instruction was erroneous; (1) no negligence was proven, and (2) the location of the post was not the proximate cause. Authorities supra. It was further erroneous because it allowed the jury to put the absolute duty upon the milling company to remove the post. Morris v. Pryor, 272 Mo. 350; Pankey v. A. T. & S. F. Co., 180 Mo.App. 185; Crawford v. Stockyards Co., 215 Mo. 410. (5) The court erred in the giving of instructions number 1 and number 2, at request of plaintiff. These instructions are inconsistent and contradictory and in conflict with other instructions given on behalf of defendants.
Boyle & Watson for respondent.
(1) The defendants, not having stood on their demurrers at the close of plaintiff's case, and having introduced evidence in their own behalf, the final demurrers search all the testimony, and the plaintiff is entitled to any benefit to be derived from the defendant's proof. Stauffer v. Metropolitan St. Ry. Co., 243 Mo. 305; Peters v. Lusk, 200 Mo.App. 372, 379. (2) Under the pleadings and the evidence, the defendants were both guilty of acts of negligence, which were concurrent and each of which created liability, and each constituted a proximate cause and either or both defendants were liable. Ganahl v. United Railway Co., 197 Mo.App. 495; Harrison v. K. C. Electric Light Co., 195 Mo. 606; Newcombe v. N.Y. Central Ry. Co., 169 Mo. 409; Hawkins v. Railroad Co., 182 Mo.App. 328; Buckner v. Horse & Mule Co., 221 Mo. 711; Clark v. Powder Co., 94 Kan. 268; 29 Cyc. 496, 497; 29 Cyc. 465; Chase v. Railroad, 156 Mo.App. 701; Young v. Waters Pierce Oil Co., 185 Mo. 634; Snyder v. Light Co., 98 Kan. 157; Hartman v. Railway Co., 94 Kan. 184. (3) The question of contributory negligence is not in this case, for the reason it is not pleaded. Harrington v. Dunham, 273 Mo. 414. (4) The plaintiff did not and could not assume the risk of the defendant railway's negligence. George v. Railroad Co., 225 Mo. 406; Fish v. Chicago, Rock Island & Pacific Ry., 263 Mo. 106; Charlton v. St. L. & S. F. R. R. Co., 200 Mo. 433. (5) The defendant milling company breached its duty toward plaintiff, an invitee. Glaser v. Rothchild, 221 Mo. 185. (6) There was no misjoinder of parties defendant or of causes of action, and even had there been the questions could only be taken advantage of by demurrer to the petition, by answer or motion to elect, and could not be raised by a demurrer to the evidence. Ganahl v. United Railway Co., 197 Mo.App. 495; Lass v. Eisleben, 50 Mo. 124; Horstkotte v. Menier, 50 Mo. 160; Johnson v. United Railways, 247 Mo. 357; Fulwider v. Gas, Light & Power Co., 216 Mo. 591. (7) There is no misjoinder of parties defendant or causes of action herein by reason of the Federal Employers' Liability Act. (a) The petition does not refer to said act, nor do the facts pleaded bring it within said act, and neither of the defendants made any reference to said act, or facts coming within that act in their answers. Taber v. Mo. Pac. Ry. Co., 186 S.W. 688; Giersch v. Santa Fe, 98 Kan. 452; Atlantic Coast Line v. Mims, 242 U.S. 532, 61 L.Ed. 476; 2 Robert's Federal Liability of Carriers, p. 1207. (b) The defendant railway company, the only party defendant having the right to raise the question, tried the case in the court below as an action based on common law negligence. Mathieson v. Railroad Co., 219 Mo. 542. (c) The court erred in receiving the proof offered by the defendant milling company on this subject, which was objected to by the plaintiff, and plaintiff is entitled to insist upon this error to up-hold his judgment. St. Charles Savings Bank v. Denker, 275 Mo. 620. (8) The instructions given are not inconsistent or in conflict with each other.
RAGLAND, C. Small and Brown, CC., concur.
This suit was instituted in the Circuit Court of Jackson County to recover damages for personal injuries received by the plaintiff, an employee of the defendant, Jacob M. Dickinson, Receiver of the Chicago, Rock Island & Pacific Railway Company, while engaged in switching cars in the yards of the defendant, Ismert-Hincke Milling Company, in Kansas City, Kansas.
The defendant Ismert-Hincke Milling Company, hereinafter referred to as the Milling Company, at and prior to the occurrences presently to be narrated, operated a large flour mill and elevator. Its plant was located in the neighborhood of the terminal and switching yards of the Chicago, Rock Island & Pacific Railway Company, hereinafter called the Railway Company, but its premises were enclosed. On the north side there was a gate, through which the Railway Company constructed a track from its yards south to the mill and elevator, for the purpose of delivering at the latter point cars loaded with wheat and receiving there cars loaded with the mill products. Connected (or to be connected) with this track there were three railroad tracks along the west side of the main structure of the mill and elevator. The one next to the mill was known as track 1, the one next west as track 2 and the remaining one as track 3. Over these three tracks there was a steel shed, open at the north and south ends to permit the passage of cars under and through it. The evidence does not particularize as to the dimensions of this shed or the character of its construction, except that it was supported by posts, all of which, possibly, were iron, with the exception of one. Photographs introduced show that on the east side its roof was attached to the west wall of the main structure, and that as a whole it was fashioned somewhat after the manner of a bridge construction. There was a row of posts between tracks 1 and 2 and another between tracks 2 and 3. The posts between 1 and 2 were placed equidistant from the tracks, there being a space of approximately four feet between post and rail. The posts between 2 and 3 were four feet west of the west rail of track 2. The intervening spaces between these latter posts and the east rail of track 3, between the west rail of track 3 and the west wall of the shed, and between the east rail of track 1 and west wall of the main mill structure, were not shown, but the photographs indicate that these spaces were not more than sufficient for the clearance of cars moving over tracks 1 and 3. Between tracks 1 and 2 there was the opening of a concrete tunnel, into which wheat was unloaded from the cars, and from thence conveyed to the elevator. The posts between these latter tracks, in addition to furnishing support for the roof, were used in connection with and constituted a part of the unloading device. Track 2 was the one generally used for unloading. It extended a short distance south of the shed, where it became, in railroad parlance, a dead end. In switching cars loaded with wheat on track 2, in order to make room for them and properly spot them for unloading, it was often necessary to first proceed on through the shed and couple on to empty cars standing near the south end of the track for the purpose of bringing them out or pushing them on to the end of the track. Track 1 was used in part as a...
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