George v. St Louis & San Francisco R. Co.

• Decision Date: 02 February 1910
• Citation: 125 S.W. 196,225 Mo. 364
• Parties: ARMOR GEORGE v. ST LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

125 S.W. 196

225 Mo. 364

ARMOR GEORGE v. ST LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri

February 2, 1910

Appeal from Cape Girardeau Court of Common Pleas. -- Hon. Benj. F Davis, Judge.

Affirmed.

W. F Evans and Moses Whybark for appellant.

(1) The plaintiff in his petition alleges that he heard the noise of a flat or defective wheel in his train and knew such defect to be dangerous to his train. This was an admitted fact, and the court erred in permitting the plaintiff to show that the engine operated by plaintiff was not disabled. It has been the law of Missouri for nearly fifty years that a party cannot be permitted at the trial to contradict the facts set up by his pleadings and this testimony contradicts such facts. Bruce v. Sims, 34 Mo. 246; Capitol Bank v. Armstrong, 62 Mo. 59; Wilson v. Albert, 89 Mo. 537; Knoop v. Kelsey, 102 Mo. 291; Bensieck v. Cook, 110 Mo. 173; Railroad v. Iron Works, 117 Mo.App. 152. The plaintiff having admitted he knew the wheel was flat and that it was dangerous to his train, he had but one duty to perform, as was shown by all the evidence and that was to stop his train at once and discover its condition, which he failed to do and assumed the dangerous position after he had full opportunity at the station of Commerce, but passed by the same without making an examination, or making any report concerning it. (2) There is no possible excuse for his act. He had many ways which were safe to discover the condition of the wheel, but instead, voluntarily selected the most dangerous position possible on his engine, and that in the most publicly traveled street in the town, and on the side of the building, the location of which he was bound to be familiar with. Moore v. Railroad, 146 Mo. 572; Sparks v. Railroad, 31 Mo.App. 111; Hurst v. Railroad, 163 Mo. 309; Smith v. Forrester-Nace Box Co., 193 Mo. 715; Edington v. Railroad, 204 Mo. 61; Montgomery v. Railroad, 109 Mo.App. 88; Railroad v. Hamlin, 10 L. R. A. (N. S.) 881; Demko v. Carbon Hill Coal Co., 69 C. C. A. 74; Railroad v. Jones, 95 U.S. 439. (3) He took the position in the most public street in the town, in violation of his duty, and at the time he did so he had absolute charge of the movement of the train, and was bound to know the location of the building, and his conduct bars his right to recover. Hulett v. Railroad, 67 Mo. 239; Hurst v. Railroad, 163 Mo. 309; Elliott v. Railroad, 204 Mo. 1; Moore v. Railroad, 146 Mo. 572. (4) The court erred in admitting the Time-table No. 12, and other evidence to show that defendant failed to warn its employees of the danger of the building. He was an experienced engineer, and had operated locomotives on that road for over three years, and for two and one-half years before he was injured he passed the building every day in daylight as an engineer on a passenger train, and averaged, as he testified, twenty-eight days in each month. He required no warning. The defendant was not required to warn him as to the location of the building. Smith v. Forrester-Nace Box Co., 193 Mo. 715; Nugent v. Kauffman Milling Co., 131 Mo. 241; Herbert v. Mound City Boot & Shoe Co., 90 Mo.App. 305; King v. Morgan, 48 C. C. A. 507. (5) Under these facts he was bound to know of its location. It was so glaring and obvious that he could not help but see it, and his opportunity to observe it under the facts is knowledge. Porter v. Railroad, 71 Mo. 66; Keegan v. Kavanaugh, 62 Mo. 230; Hulett v. Railroad, 67 Mo. 239; Kelsay v. Railroad, 127 Mo. 375; Harff v. Green, 168 Mo. 308; Railroad v. Johnson, 16 C. C. A. 317; Rains v. Railroad, 71 Mo. 164; Furnes v. Railroad, 129 Mo. 41. (6) He assumed the risk. The danger, if any, existed when he entered the service, and was not placed there afterwards. Charlton v. Railroad, 200 Mo. 435; Blundell v. Mfg. Co., 189 Mo. 559; Brady v. Railroad, 206 Mo. 527; Mathis v. Kansas City Stock Yards, 185 Mo. 444; Roberts v. Mo. & Kan. Tel. Co., 166 Mo. 378; Nugent v. Kauffman Milling Co., 131 Mo. 245; Junior v. Mo. Elec. Light & Power Co., 127 Mo. 83; 1 Labatt on Master & Servant, p. 141, sec. 55. (7) The plaintiff was guilty of such negligence that the court ought not to have submitted the case to the jury on that account. He knew of the building when he took the position on the side of the locomotive. Knorpp v. Wagner, 195 Mo. 637; Smith v. Forrester-Nace Box Co., 193 Mo. 715; Doerr v. St. L. Brewing Assn., 176 Mo. 547; George v. St. L. Mfg. Co., 159 Mo. 333; Loring v. Railroad, 128 Mo. 349; Fore v. Railroad, 114 Mo.App. 551; Evans v. Railroad, 178 Mo. 508; Sparks v. Railroad, 31 Mo.App. 111; Hulett v. Railroad, 67 Mo. 239; Holmes v. Bradenbaugh, 172 Mo. 53; Sissel v. Railroad, 214 Mo. 515. He placed himself in a dangerous position when he had charge of the movement of the train, and had other ways to safely perform the service he undertook to perform. Montgomery v. Railroad, 109 Mo.App. 88; Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 309; Hulett v. Railroad, 67 Mo. 239; Elliott v. Railroad, 204 Mo. 1. And in violation of the rules of the company, which he had with him when he was injured, and with which he was perfectly familiar. Francis v. Railroad, 110 Mo. 387; Schaub v. Railroad, 106 Mo. 230; Railroad v. kane, 118 F. 230; Railroad v. Dewees, 82 C. C. A. 190; Grattis v. Railroad, 153 Mo. 380. He had no right to permit his mind to become so engrossed as to become heedless of danger, and not take proper precaution. Clancy v. Railroad, 192 Mo. 615. Nor will his forgetfulness of the position of the building excuse his conduct under the facts of this case. 1 Labatt on Master and Servant, p. 675, sec. 281; Bartley v. Railroad, 148 Mo. 124; Holwerson v. Railroad, 157 Mo. 242. (8) The court erred in admitting in evidence Time-table No. 14, because it went into force after plaintiff was injured, and could have no effect except to prejudice the jury against defendant. Hipsley v. Railroad, 88 Mo. 348; McHaney v. Railroad, 108 Mo. 191; Alcorn v. Railroad, 108 Mo. 81; Railroad v. Cartlege, 116 Ga. 164. (9) The court erred in permitting the plaintiff to offer in evidence the rules of defendant relating to structures, over the objection of the defendant. And also erred in refusing instruction 5 asked for by defendant construing the rules. These rules related to structures erected on the right-of-way, by the defendant or by its consent, and not to structures on private property as was the building in this case. It may have been a nuisance, but defendant had no control over it, and had no power to have it moved. Lucas v. Railroad, 174 Mo. 270; Railroad v. Moore, 82 S.W. 478. (10) The court erred in overruling the objection by defendant to the question asked the witness Dierson, by plaintiff, as to the method employed by him to discover a defective wheel, and also erred in permitting the plaintiff to prove the same facts by the witness Gill. Ruschenberg v. Railroad, 161 Mo. 70. (11) The court erred in overruling the objection by defendant to the question asked plaintiff, by his counsel, if he was in the discharge of his duty as a railroad engineer when he took his position on the step of the tender; and if it was necessary for him to make a report about the condition of the wheel. This evidence called for a conclusion by the witness, and the objections should have been sustained.

Wilson Cramer for respondent.

(1) In the case at bar the "pottery building" was erected 25 or 30 years before the railroad was built, and when the railroad was constructed, about the year 1895, the track was laid so close to the building that the nearest rail was less than four feet from it. The defendant company took charge of the road in this condition in the year 1904, and continued to operate it without change up to the time of plaintiff's injury in January, 1906. (2) The engineer who located and built the road, Major James F. Brooks, was continuously afterwards in the employ of the different companies that controlled the road, and passed into the service of the present defendant company when it took charge, continuing in its employ up to August, 1905. (3) Plaintiff knew that the pottery building was one erected by private parties and fell within the provision of rule 333, that such buildings should not be nearer than six feet from the nearest rail. The rule itself was calculated to throw him off his guard. He had the right to assume that the company had complied with the rule and would not permit such a building to stand less than six feet from the nearest rail. Murphy v. Railroad, 115 Mo. 111. (4) It is urged that the building did not belong to the company and that it had no right to move it, but, while this may be true, it is equally true that there was nothing to prevent it from moving its track. The ordinance of the village of Commerce conferred the right to lay a track through the center of Water street, but the proof shows that it was located east of the center, and gets closer to the eastern margin of the street as it approaches New Madrid street on which the pottery building was located. (5) It is in evidence that it is difficult to tell from a moving train how close an object is to the track, and it was not the duty of plaintiff, in this instance, to make an examination. Murphy v. Railroad, 115 Mo. 111. To require the servant to determine the distance of objects near the track is to relieve the master from the obligation placed upon him by law to see that it is free and clear of dangerous obstructions. Charlton v. Railroad, 200 Mo. 413. (6) It is conceded by all of the expert witnesses that it was the duty of the plaintiff to locate the flat wheel and determine its condition. This is not disputed by anyone. And the preponderance of the evidence shows that he assumed the right position when he got...