Grissamore v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 07 May 1906
• Citation: 118 Mo. App. 387,94 S.W. 306
• Court: Missouri Court of Appeals
• Parties: GRISSAMORE v. CHICAGO, R. I. & P. RY. CO.

94 S.W. 306

118 Mo. App. 387

GRISSAMORE v. CHICAGO, R. I. & P. RY. CO.

Kansas City Court of Appeals. Missouri.

May 7, 1906.

1. MASTER AND SERVANT — ACTION FOR INJURIES —PLEADING—ISSUES, PROOF AND VARIANCE.

In an action for injuries to a railroad employé, by the derailment of a train, the petition alleged that the defendant, acting through its officers, servants, and agents, negligently operated, managed, and ran the engine and cars of the train, and by reason of defendant's negligence the engine and cars were derailed, and that the defendant negligently employed an incompetent engineer, who was a member of the train crew, and who was ignorant of defendant's road, and who was incompetent to run the train, and of which incompetency defendant then and there did know, and on account of such incompetency of the engineer and defendant's negligence in operating, managing, and running the train, it was negligently derailed by defendant. Held, that a contention that the first part of the charge in the petition ought not to be considered a general allegation, but rather a specific allegation affecting any one of the train crew, and that the second part of the charge related to the engineer alone so that the rule that under a general allegation of negligence followed by specific acts, the plaintiff will be confined in his proof to the latter unbroadened by the former should not apply, was untenable.

2. SAME.

Evidence tending to show that defendant's car inspector was negligent in not repairing a car having a defective brake, which was run in the train, was inadmissible.

Appeal from Circuit Court, Grundy County; Geo. W. Wannamaker, Judge.

Action by Ira C. Grissamore against the Chicago, Rock Island & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

M. A. Low and Harber & Knight, for appellant. Hubbell Bros., for respondent.

ELLISON, J.

The plaintiff was an employé 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,...