Gibler v. Quincy, O. & K. C. R. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Nortoni
• Citation: 148 Mo. App. 475,128 S.W. 791
• Parties: GIBLER v. QUINCY, O. & K. C. R. CO.
• Decision Date: 17 May 1910

128 S.W. 791 148 Mo. App. 475 GIBLER
v.
QUINCY, O. & K. C. R. CO. St. Louis Court of Appeals. Missouri. May 17, 1910. Rehearing Denied May 31, 1910.

1. NEGLIGENCE (§ 119)—ACTIONS—PLEADING —RES IPSA LOQUITUR.

Though one may join in his petition an allegation of general negligence with averments of specific acts touching the same matter of complaint, yet when the petition contains a general allegation of negligence, and also avers other specific matters of fact as to how the accident in question occurred, the specific averments take precedence over the general allegation, and plaintiff must prove them as laid, even though the doctrine of res ipsa loquitur might apply under a general allegation unaccompanied by specific averments.

2. NEGLIGENCE (§ 121)—RES IPSA LOQUITUR.

The doctrine of res ipsa loquitur merely affords a presumption sufficient as prima facie proof of the fact of some negligence, but not of specific acts of negligence.

3. MASTER AND SERVANT (§ 265)—INJURY TO SERVANT—RES IPSA LOQUITUR.

The doctrine of res ipsa loquitur applies in proper cases where a train is under the management of defendant, and the accident is such as in the ordinary course does not happen if proper care is used in managing the conveyance and affords reasonable evidence, in the absence of explanation, that the accident arose from a want of care on defendant's part and the mere fact that plaintiff is a servant of defendant will not prevent the application of the doctrine, especially in view of Rev. St. 1899, § 2873 (Ann. St. 1906, p. 1655), abrogating the doctrine of fellow servants as to railroad employés.

4. MASTER AND SERVANT (§ 180)—FELLOW SERVANTS—PERSON REPAIRING BRIDGE FOR RAILROAD.

One repairing bridges for a railroad company, if injured while in the line of duty, though not actually engaged in work on a bridge, is within the scope of Rev. St. 1899, § 2873 (Ann. St. 1906, p. 1655) abrogating the doctrine of fellow servants as to railroad employés.

5. NEGLIGENCE (§ 121)—RES IPSA LOQUITUR —THEORY OF DOCTRINE.

The doctrine of res ipsa loquitur, permitting a presumption of negligence to suffice for plaintiff, proceeds on the theory that it is easily within the power of defendant to show that there was no dereliction on his part.

6. NEGLIGENCE (§ 121)—RES IPSA LOQUITUR —APPLICATION OF DOCTRINE.

Where there is a general allegation in the petition as to the negligent breach of duty, accompanied by averments of specific acts of negligence touching the same subject-matter, the rule of res ipsa loquitur will not apply, for by going into the specification of negligent acts plaintiff has shown his familiarity with the grounds of liability involved, and indicated not only his purpose but his ability to prove the same as laid.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by John Gibler against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

See, also, 129 Mo. App. 93, 107 S. W. 1021.

O. D. Jones and J. G. Trimble, for appellant. G. R. Balthrope, C. M. Smith, and F. H. McCullough, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered, and defendant appeals.

It appears plaintiff was one of a party of six engaged in defendant's service as bridge carpenters. On the day of his injury, plaintiff, together with his companions, had been working adjacent to the city of Edina. Defendant had furnished the bridgemen three cars to be used in connection with their duties. One of these cars was an ordinary freight car containing bunks for sleeping purposes, cooking utensils, tables, chairs, etc., and was known as the "bunk" and "dining" car. Another was a freight car on which they transported materials necessary to the repair of bridges. The third was what is known as a "flat car," and was used by plaintiff and his companions as a conveyance for their tools and some supplies. It becoming necessary for the party to remove from Edina to the town of Brashear, the three cars mentioned were included in one of defendant's trains for that purpose. As the two towns mentioned are situate a short distance apart, plaintiff and two of his companions took passage on the flat car used by them as a conveyance for their tools, instead of going into the other, known as the "bunk" car. The train into which the three cars of the bridgemen were taken seems to have been a very long one, consisting of about 60 cars in all. It was propelled by two locomotive engines. Thus made up, it constituted what is commonly known among railroad men as a "double header." Instead of the two locomotives being connected, however, they were separated by a freight car between them, and the two engines, thus separated, were drawing the long train in question.

128 S.W. 792

Immediately upon leaving the city of Edina to the westward is a heavy grade on defendant's road. After passing the summit of this, the train descends another considerable grade into a swale on the roadbed, and then comes another grade to the westward. The three cars of the bridgemen were placed in the train near the rear end thereof and, as stated, plaintiff, in company with two of his companions, was standing on the flat car which they used as a conveyance for their tools and a few supplies. The plaintiff stood a few feet from the forward end of this car as the train progressed westward, and his fellow workman, Montcrief, was close by his side. After passing over the summit of the first grade west of Edina, the train descended the incline to the swale of the track with considerable rapidity, and upon the forward part thereof, ascending the next grade to the west, it became uncoupled between the two locomotives. Just where or how this uncoupling occurred does not appear; but it is said in the proof that it was between the two locomotives which, as before stated, were separated only by a freight car. The entire train as far back as the cars occupied by the bridgemen was equipped with air brakes so that they worked automatically upon the occurrence of the uncoupling mentioned. It appears that, instantly upon the forward locomotive becoming uncoupled from the remainder of the train, the brakes were automatically set on all of the cars back to the one on which plaintiff and his companion were riding. Of course, this produced a sudden and violent stoppage of the train without warning. The three cars used by the bridgemen were not equipped with air. Hence including them in the train operated to dissever the current, so that the half dozen cars in the rear ran forward as though no brakes were attached. The result was such a sudden and violent shock as to precipitate plaintiff immediately forward off of the flat car on which he was standing. It is said that he would have fallen on the rail of the track except for the fact that Montcrief, his companion, laid hold of his coat with his hand in an effort to prevent a catastrophe, and thus directed his fall to the side of the railroad embankment. Plaintiff fell with great force upon his neck, shoulder, and arm, and the testimony is that he received a painful injury which may prove to be permanent.

Besides containing a general allegation of negligence in operating the train, the petition contains two specific allegations as to the negligent acts relied upon. The case was here on a former appeal, and is reported in Gibler v. Q., O. & K. C. R. Co., 129 Mo. App. 93, 107 S. W. 1021. The petition before us on the former appeal was in part the same as the one now in judgment except for the fact it contained an allegation to the effect the air brakes were defective and unsafe. After the case was remanded, the present amended petition was filed, and the averments touching the matter of defective and unsafe airbrakes omitted. Otherwise the pleading predicates upon the same grounds of negligence as theretofore, and a general allegation of negligence is included. In the present petition it is averred first substantially that defendant was negligent in recklessly, wantonly, carelessly, and negligently running its train at a high and dangerous rate of speed. It may be said of this allegation, however, that, although it abundantly appears the train was being operated at from 20 to 25 miles per hour, there is not a scintilla of proof that such was a dangerous rate of speed. Indeed, this allegation of negligence is not only unproven, but was abandoned by the plaintiff at the trial, for it appears that he...