Grisamore v. The Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 07 May 1906
• Parties: IRA C. GRISAMORE, Defendant in error, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Plaintiff in Error
• Court: Kansas Court of Appeals

94 S.W. 306

118 Mo.App. 387

IRA C. GRISAMORE, Defendant in error, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Plaintiff in Error

Court of Appeals of Missouri, Kansas City

May 7, 1906

Error to Grundy Circuit Court.--Hon. George W. Wannemaker, Judge.

Judgment reversed and cause remanded.

M. A Low, Orton & Orton and Harber & Knight for plaintiff in eror.

(1) And so it has been ruled that where speciflc negligence is alleged, in connection with a general allegation, that no proof of negligence outside of that specificed is admissible. Breeden v. Mining Company, 103 Mo.App. 179; McManamee v. Railroad, 135 Mo. 447; Schneider v Railway, 75 Mo. 295; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railroad, 148 Mo. 75; Watson v. Railway, 133 Mo. 246; Bank v. Fritzglen, 135 F. 659; 4 Enc. Pl. & Prac. 742; Conway v. Railway, 24 Mo.App. 235; Oglesby v. Railway, 177 Mo. 301; Waldier v. Railroad, 71 Mo. 516.

Platt Hubbell and George Hubbell for defendant in error.

(1) Plaintiff charged that defendant negligently operated managed and ran the engine and cars of said extra train, thereby derailing the same, injuring the plaintiff. This allegation of negligence covers the conduct of the train crew and is based on the fellow servant statute (R. S. 1899, section 2873), as well as the common law liability of the defendant for the negligence of such members of said train crew as were vice-principals of the plaintiff. This is a general allegation of negligence, yet, it is sufficient. Sullivan v. Railway, 97 Mo. 113, 117; Pope v. Railway, 99 Mo. 400; Ellett v. Railway, 76 Mo. 518. (2) The petition clearly charges negligence in conducting and running the train, and this allegation is clearly sufficient to cover the conduct of the engineer in the management of the train at the time of the accident. 76 Mo. 535; LeMay v. Railway, 105 Mo. 370; Shaw v. Railway, 104 Mo. 656; Malloy v. Railway, 173 Mo. 75; Shuler v. Railway, 87 Mo.App. 618; Fisher v. Golladay, 38 Mo.App. l. c. 538; Chubbuck v. Railway, 77 Mo. l. c. 593. (2) Plaintiff alleged that the defendant negligently employed an incompetent engineer, and negligently retained an incompetent engineer, thereby causing the derailment and injury--a general allegation of negligence. This is an allegation of negligence, based on the common law only. 12 Am. & Eng. Ency. of Law (2 Ed.), 909. Plaintiff's first allegation of negligence, is that the defendant negligently operated, managed and ran the engine and cars. This alleges the negligence of the train crew. Plaintiff's second allegation of negligence is, that the defendant negligently employed and negligently retained one member of the train crew. The second allegation is not included within the first. The first allegation is not included within the second. One might exist, without the other. The first allegation alleges the negligence of those who ran the train. The second allegation alleges the negligence of those who employed the men who ran the train. Hill v. Railway, 49 Mo.App. 534; Hill v. Railway, 121 Mo. 477; Wacher v. Transit Co., 108 Mo.App. 645; Holden v. Ry., 108 Mo.App. 665.

OPINION

ELLISON, J.

The plaintiff was an employee of the defendant and while such he was injured by an alleged negligent derailment of one of its trains while he was riding in the engine with the engineer. The judgment in the trial court was for the plaintiff.

The engineer had not been over the particular part of defendant's road prior to the trip in controversy and plaintiff, who was familiar with the road, was riding with him so as to act as "pilot." The petition alleges the negligence complained of in the following way: "The defendant, acting through its officers, servants and agents negligently operated, managed and ran the engine and cars of said extra train, and, by reason of defendant's said negligence, said engine and cars were then and there derailed and thrown from the track and turned over. The defendant negligently employed and at all times herein mentioned, negligently retained in its employment an incompetent engineer, who was a member of said train crew, and who was ignorant of defendant's said road, and who was incompetent to run said train from St. Joseph to Leavenworth; and, of which incompetency the defendant, then and there might have known by the exercise of ordinary care and diligence, and of which incompetency the defendant, then and there, did know: and, on account of said incompetency of said engineer and, on account of defendant's negligence in operating, managing and running said train, the aforesaid train was negligently derailed by defendant."

Under those allegations, defendant contends that the only evidence admissible would be that tending to prove the incompetency and the negligence of the engineer; and that since evidence of other acts of negligence was admitted, over its objection, error was committed. We find that there was evidence of other acts of negligence, notably of running one car in the train with defective and insufficient brakes. The rule is now so well established in this State as to be no longer questioned, that if there is a general allegation of negligence followed by specific acts, the plaintiff will be confined in his proof to the latter unbroadened by the former. [Chitty v. Railway, 148 Mo. 64; McCarty v. Hotel Co., 144 Mo. 397, 46 S.W. 172; Schneider v. Railway Co., 75 Mo. 295.]

But plaintiff strongly insists...