Hall ex rel. Greaves v. Missouri Pacific Railway Company

• Decision Date: 13 April 1909
• Parties: ERRETT HALL, by ELI A. GREAVES, Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

118 S.W. 56

219 Mo. 553

ERRETT HALL, by ELI A. GREAVES, Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 13, 1909

219 Mo. 553 at 592.

Original Opinion of April 13, 1909, Reported at: 219 Mo. 553.

Motion overruled.

OPINION

ON MOTION FOR REHEARING.

GRAVES J.

It is earnestly insisted in the motion for rehearing that the negligence of the brakeman was never submitted to the jury and that therefore the issue found by this court as vital to defendant's case is an entirely new theory injected here for the first time. And it is further insisted that the petition does not count upon the negligence of the brakeman. If either of these contentions was well founded, there would be error in the opinion, but they are not, as we read the petition and the instructions.

In the first place the petition, after stating that plaintiff was placed in a place of danger by the direction of the brakeman then proceeds: "That while plaintiff was so engaged on said car, and was in said place of peril, defendant and defendant's said conductor, agents, servants and employees operating said train, knowing that plaintiff was on said car and in a place of peril and after they could have known it by the exercise of ordinary care negligently and unskillfully mismanaged the said engine, cars and train and carelessly and negligently and with great and unusual and unnecessary force and violence ran said engine and freight cars attached thereto, against the said car on which said plaintiff was, by reason of which," etc.

This petition is certainly broad enough to include the brakeman. It includes in its allegations not only all the agents and employees of defendant, but the defendant itself, the language being, "defendant and defendant's said conductor, agents, servants and employees operating said train." It does not stop here, but it avers that "they" (referring to the clause above, which included defendant and all of its employees) "negligently and unskillfully mismanaged the said engine, cars and train and carelessly and negligently . . . . ran said engine and freight cars attached thereto against the said car on which plaintiff was," etc.

So that it is apparent that a fair construction of this petition leads to the inevitable conclusion that it charges the injury to plaintiff to have been occasioned by the negligence of the brakeman, as well as by the negligence of the engineer and other employees. Then going for a minute to the evidence, it is there shown that...