Geary v. Kansas City, Osceola & Southern Railway Company

• Decision Date: 23 March 1897
• Citation: 39 S.W. 774,138 Mo. 251
• Parties: Geary v. Kansas City, Osceola & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

39 S.W. 774

138 Mo. 251

Geary v. Kansas City, Osceola & Southern Railway Company, Appellant

Supreme Court of Missouri, First Division

March 23, 1897

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

Johnson & Lucas for appellant.

(1) The defendant complains of the action of the trial court in overruling its application for a continuance. The court permitted plaintiff to admit that the witness "if present would swear to the facts," and overruled the application. This admission was made by plaintiff in consequence of the fact that he had secured witnesses to prove contradictory statements made by such absent witness which defendant could not meet on account of the absence of such witness. Under these circumstances defendant was denied due process of law. And we contend, in violation of that provision of our Constitution which says, "That no person shall be deprived of life, liberty, or property without due process of law." Section 2127, Revised Statutes 1889, is relied on to sustain the action of the trial court in this matter. That part of the section material to the present inquiry is as follows: "And the opposite party may disprove the facts disclosed, or prove any contradictory statements made by such absent witness in relation to the matter in issue and on trial." (2) What is meant by "without due process of law?" "The meaning is that every citizen shall hold his life, liberty property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land." Cooley's Constitutional Limitations [3 Ed.], sec. 353; State v. Berkley, 92 Mo. 41, dissenting opinion, Sherwood and Brace, judges; Elsner v. Supreme Lodge, 98 Mo. 646. (3) And again "They were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." Cooley, supra, sec. 355; State v. Doherty, 60 Me. 509; State v. Simons, 2 Speers, 767; Mandlin v. Greenville, 42 S.C. 293. (4) In Missouri we deny the constitutionality of such statute in its application to life or liberty, and seek to affirm it as to property. Logically we should deny or affirm in both cases. Pace v. Commonwealth, 89 Ky. 207; Johnson v. Same, 94 Ky. 578; Murphy v. Same, 92 Ky. 485. (5) The evidence wholly failed to show that defendant knew, or by the use of reasonable care could have known, that "the flange of wheel on the front truck had been in a cracked, defective, and dangerous condition." (6) The charge of the petition is the flange of the wheel on the front truck. The only evidence of any defect in the flange was in the forward tank truck. Two entirely different parts of the locomotive. Elliott v. Railroad, 67 Mo. 272; Schleuth v. Railroad, 96 Mo. 509; Covey v. Railroad, 86 Mo. 635. (7) And this court has held that it is error to single out a servant, upon whom none of the duties of the master as to furnishing proper appliances and keeping them in repair devolve, and predicate a right to recover upon such servant's knowledge of defects or his want of care. Covey v. Railroad, 86 Mo. 635. (8) The court erred in giving instruction number 2 asked by the plaintiff; the same assumes that the wheel of the locomotive was cracked, dangerous, and defective, and tells the jury that if the accident was occasioned by reason thereof, then the finding should be for the plaintiff. Wilkinson v. Eiters, 114 Mo. 245; Stokes v. St. Louis & I. M. R. R., 91 Mo. 518. (9) The evidence shows that the position of the plaintiff contributed to his injury, and the instruction told the jury that if plaintiff had no business engagements connected with his duty as conductor of the train he could not recover. This is the law. Cunningham v. Chicago R. R., 12 Am. and Eng. R. R. cases, 217; Doggett v. Illinois R. R. Co., 34 Iowa 284; Robertson v. Railroad Co., 22 Barbour, 91; Railroad Co. v. Jones, 95 U.S. 439. (10) The damages are excessive and the verdict is the result of passion and prejudice. Adams v. Mo. Pacific Railroad Co., 100 Mo. 555; Furnish v. Mo. Pacific Railroad Co., 102 Mo. 438.

Warner, Dean, Gibson & McLeod for respondent.

(1) Plaintiff's petition states a case. Hurlbut v. Wabash R'y Co., 130 Mo. 664. (2) Defendant must exercise reasonable care to provide and maintain its machinery and appliances, and this duty it can not delegate to another. Coontz v. Mo. Pac. R'y Co., 121 Mo. 659; Henry v. Wabash R'y Co., 109 Mo. 493; Railroad v. Herbert, 116 U.S. 642; Swadley v. Mo. Pac. R'y Co., 118 Mo. 277. (3) Whether or not defendant exercised reasonable care to discover the defective and dangerous condition of the wheel is a question for the jury. Oglesby v. Mo. Pac. R'y Co., 37 S.W. 829; Coontz v. Mo. Pac. R'y Co., 115 Mo. 675. (4) Plaintiff had the right to presume that defendant would provide and maintain reasonably safe machinery. Porter v. Han. & St. J. R. R. Co., 71 Mo. 79; Waldhier v. Han. & St. J. R. R. Co., 87 Mo. 48; Hurlbut v. Wabash R'y Co., 130 Mo. 657. (5) All the evidence shows that plaintiff knew nothing whatever of this defective and dangerous condition of the wheel. But even if he did know of it, it was not in the line of his employment. Swadley v. Mo. Pac. R'y Co., 118 Mo. 278; Hamilton v. Rich Hill Coal Co., 108 Mo. 364; O'Mellia v. Railroad, 115 Mo. 218. (6) Plaintiff's instruction 2 is not error. Defendant's evidence sustains it. Defendant's second and eighth instructions are framed in the same language. Besides, this language has the approval of this court. See plaintiff's instructions 3 and 4 in Hurlbut v. Wabash R'y Co., 130 Mo. 657. (7) The court did not err in overruling defendant's application for a continuance. When plaintiff agreed to admit that the absent witness would swear to the facts set forth in the application plaintiff was entitled to a trial. Section 2127, Revised Statutes 1889, is constitutional. Woolwine v. Bick, 39 Mo.App. 499; Richey v. Branson, 33 Mo.App. 423; Elsner v. Supreme Lodge, 98 Mo. 648; Johnson v. Commonwealth, 94 Ky. 578. (8) If there is reasonable doubt of the constitutionality of section 2127, Revised Statutes 1889, this court will uphold it; and the section is presumed to be constitutional. State v. Dettmer, 124 Mo. 432; State v. Hope, 100 Mo. 347; St. Louis R'y Co. v. Holliday, 131 Mo. 441, 457. (9) This court will not interfere with the discretion of the lower court in passing upon the application for a continuance. State v. Carter, 98 Mo. 180, 181. (10) Every intendment is in favor of the action of the lower court. Blair v. Railroad, 89 Mo. 395. (11) A continuance relates to the practice or mode of procedure and plaintiff had no vested right therein. L. N. A. & C. R'y Co. v. Wallace, 136 Ill. 87; Jensen v. Fricke, 133 Ill. 171. (12) Due process of law is "law in its regular course of administration through courts of justice." State v. Loomis, 115 Mo. 312, 313; 1 Bouv. Law Dict. 512; 1 Rap. & Lawrence Law Dict. 423.

Brace J. Robinson, J., absent.

OPINION

Brace, J.

This is an appeal from a judgment of the circuit court of Clay county in favor of the plaintiff for the sum of $ 4,500 in an action for damages for personal injuries received by him while acting as conductor of one of defendant's construction trains, the locomotive of which it is alleged in the petition "was derailed by reason of the breaking of the flange of the wheel of the front truck thereof, which said wheel was and for many days prior thereto had been in a cracked, defective and dangerous condition." The answer was a general denial and a plea of contributory negligence, upon which issue was joined by reply.

The suit was instituted in the Jackson circuit court October 9, 1893, taken thence on application of the defendant by change of venue to the circuit court of Clay county, where the same coming on for trial on the sixteenth of November, 1894, the defendant made application for a continuance on account of the absence of one Owen Brady. The plaintiff admitted that the said absent witness would, if present, swear to the facts set out in the application. The court thereupon overruled the same, and the action of the court in so doing was excepted to, and is here assigned as error. The trial of the case then proceeded, and at the close of all the evidence was submitted to the jury on instructions. Of those given for the plaintiff number 2 was excepted to, and the giving of the same is here assigned as error. That instruction is as follows:

"2. If the jury believe from the evidence that on or about December 12, 1892, between Sheffield and Grand View, on defendant's line of railroad, the plaintiff was conductor upon the defendant's construction train then and there drawn by one of defendant's engines, then on defendant's road between said points, defendant's said engine was derailed by reason of the cracked, defective and dangerous condition of the wheel of the front truck thereof, causing the flange of said wheel to break; that defendant knew or by the exercise of reasonable care and caution might have known of such cracked, defective and dangerous condition of said wheel in a sufficient time to have made the same reasonably safe for the purpose for which it was used, but failed to do so; that plaintiff did not know of such cracked, defective and dangerous condition of said wheel; that by reason of said derailment of said engine plaintiff was thrown with great force and violence against the boiler head of said engine and was thereby injured, then plaintiff is entitled to recover, and your verdict must be for plaintiff, provided you further believe from the evidence that plaintiff was not guilty of contributory negligence as stated and...