Hamilton v. Kansas City Southern Ry. Co.

• Decision Date: 04 March 1907
• Citation: 123 Mo. App. 619,100 S.W. 671
• Parties: HAMILTON v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

100 S.W. 671

123 Mo. App. 619

HAMILTON v. KANSAS CITY SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

1. MASTER AND SERVANT — PERSONAL INJURIES —EVIDENCE—RES IPSA LOQUITUR.

The difference between the rule res ipsa loquitur as applied to a passenger or stranger and a servant is that in the case of a passenger a presumption aids the occurrence to speak, while in the case of a servant there is no such aid, and the occurrence itself must speak its character.

2. SAME.

Where plaintiff, a brakeman in defendant railroad's employ, was setting a hand brake on top of a car, and was thrown from the car by the giving way of something connected with the brake appliances, thus permitting the wheel to revolve rapidly, the doctrine of res ipsa loquitur was not applicable in aid of plaintiff's recovery, there being no affirmative proof of defendant's negligence.

3. APPEAL—QUESTIONS NOT RAISED BELOW.

Where, in an action by an employé against a railroad for personal injuries, the federal safety appliance act was not pleaded, and no case was attempted to be made under the act, and no issue was submitted to the jury in respect thereto, plaintiff could not on appeal contend that he had a case under the act.

Appeal from Jackson County Court; John G. Park, Judge.

Action by F. H. Hamilton against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Cyrus Crane, for appellant. Boyle, Guthrie & Smith, for respondent.

ELLISON, J.

The plaintiff was engaged in defendant's service as a brakeman on one of its freight trains. The train left a station called "Mena" at about 4 o'clock in the morning, whence it proceeded on an upgrade to what was called the "top of the mountain." From the latter point there was a descending grade, for the distance of near 14 miles, to a place called "Page," where the train was wrecked. The train was equipped with "air brakes" set from the engine, and the cars had also hand brakes connected by a rod with the top of the cars, which were set by brakemen. Shortly before the wreck, plaintiff concluded to set some of the brakes. He tried one or more on different cars and found by giving them trial turns, that the rod and wheel revolved loosely; that is, there was no indication that revolving the brake wheel was having any effect on the brake on the wheels of the car. He passed over to the car which figures in this controversy, and gave the brake wheel a preliminary turn to see if it would show itself to be in working order by tightening up. It appeared to be in good condition, and he began to set the brake. As he threw or swung the weight of his body, in his effort to set the brake something connected with the brake appliances suddenly gave way so that the wheel revolved rapidly and he was thrown from the top of the car to the ground and injured. The wreck occurring shortly afterwards, and the wreckage burned, there was no means of ascertaining what caused the wheel and rod to revolve so suddenly and loosely. Nor was there any way to ascertain what was defective, or whether anything was. The judgment in the trial court was for the plaintiff.

Plaintiff concedes that he was unable to make a showing of culpable negligence on defendant's part unless he has done so under the rule of res ipsa loquitur. He concedes that except as to his point on the "federal safety appliance act," to which we shall refer further on, his case was prosecuted solely under that rule. The decision of the case is thus made to turn upon an application of the rule of res ipsa loquitur. There is some apparent diversity in the views which the courts have taken of that rule of evidence. We believe the difference, in most instances, is more apparent than real, and that it comes from differences of expression between those who mean the same thing, and from differences as to whether a given state of facts will justify the application of the rule. There are certain cases where from matters of public policy and the general subservience of justice, the rule will be applied in favor of a plaintiff though he has not proven the defendant to be culpable; that is, guilty of negligence. The law has given, in his aid, a rule of presumption that the mere happening of the occurrence which caused his injury was the result of negligence. It may be such an occurrence as may well happen without negligence, yet the presumption in his favor will entitle him to a verdict, unless the defendant comes forward and shows himself free from fault. It will not do to say, in all cases, that proof of the occurrence is proof of negligence, for we know that not to be true. It is proof that negligence may be a fact, but whether actually a fact is conjectural. But the law has raised up a presumption, from matter of policy, to the end that there may not be a miscarriage of justice in the instance of injury to persons who otherwise would be powerless to obtain redress. This presumption is a favor or indulgence of the law granted only to a certain class of injured persons, and it is out of harmony with the general law of evidence, founded on natural justice, that when one accuses another of a wrong he must make proof of the guilt unaided by the silence of the accused. Being an indulgence, the law may offer it to whatever classes of persons it deems sufficiently exceptionally situated as to demand it. Whatever disagreements there may be as to other persons, there seems to be unanimity of opinion that passengers have been selected as a class who may invoke the presumption against the carrier. It is presumption of law and fact. That is to say, if the triers of the fact believe the occurrence is of the kind which the law deems sufficient to raise the presumption and no explanation is given, then they are compelled to presume, by force of the law, that there was negligence.

But the question in this case is, whether an employé may call such presumption to his aid. The plaintiff insists that he may. He contends that it is a rule of evidence with no existing reason why it should not be applicable to a servant as well as a passenger. We think that there is good reason for applying the rule to the latter class, and not to the servant. The passenger does not assume risks while the servant does. The instances of nonliability for injury to a passenger (in the absence of contributory negligence) are rare. The instances of liability to the servant are not nearly so frequent. The passenger is helpless, and he necessarily places himself in the carrier's hands. He knows nothing of the carrier's machinery, nor his methods, and it is impractical for him to ascertain. Whereas the servant is a part of the carrier's service. He has opportunity in a vastly greater degree than the passenger to ascertain the causes which led to his injury. The greater part of what we have just stated as to a passenger applies with equal reason to a stranger who may suffer injury; and so we find the courts extending the presumption to him in aid of his evidence against the party he charges with the wrong. The foregoing considerations have occurred to us as good reason for a distinction between classes of persons. That the law has not granted the benefit of this presumption to a servant, and that it holds him to the necessity of an affirmative showing of negligence, is sustained by the great weight of authority: Patton v. Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Sack v. Dolese, 137 Ill. 129, 27 N. E. 62; Joliet Steel Co. v. Shields, 146 Ill. 603, 34 N. E. 1108; Mixter v. Coal Co., 152 Pa. 395, 25 Atl. 587; Ry. Co. v. Hughes, 119 Pa. 301, 13 Atl. 286; Redmond v. Lumber Co., 96 Mich. 545, 55 N. W. 1004; Toomey v. Eureka Works, 89 Mich. 249, 50 N. W. 850; Huff v. Austin, 46 Ohio St. 386, 21 N. E. 864, 15 Am. St. Rep. 613; Lincoln Ry. Co. v. Cox, 48 Neb. 807, 67 N. W. 740; Chicago Ry. Co. v. Kellogg, 55 Neb. 748, 76 N. W. 462; Kincaid v. Railway Co., 22 Or. 35, 29 Pac. 3; Johnson v. Railway Co., 36 W. Va. 73, 14 S. E. 432; Brownfield v. Railway Co., 107 Iowa, 254, 77 N. W. 1038; Benedick v. Potts, 88 Md. 52, 40 Atl. 1067, 41 L. R. A. 478.

There is, however, authority based on the best of reason, showing that the servant's case may be made out by mere proof of the occurrence which caused the injury in those instances where the occurrence itself, without the aid of a presumption, shows negligence. In case of a passenger, as we have seen, the occurrence itself may not show negligence and the presumption comes to his relief. But, in the servant's case, if the occurrence is of that nature, which, of itself, shows negligence without the aid of a presumption, he may, as just stated, make a case by showing the occurrence only. Thus, where the employer tied the knot in a rope used in hoisting a hood for the top of a smokestack, which immediately became untied in the hoisting, it was held in Folk v. Schaeffer, 186 Pa. 253, 40 Atl. 401 (a court holding strictly to the rule that res ipsa loquitur does not apply in favor of servants) that it was sufficient prima facie evidence of negligence. The occurrence shown may be of that nature which could not in any degree of probability have happened without a negligent cause. Its proof is tantamount to the direct and affirmative proof of negligence. We think it would not be necessary that the occurrence should be such as could not by any possibility have happened without a negligent cause; for that would be getting beyond the requirement of evidence, especially in civil cases.

We have thus far discussed the case without referring to what has been said of kindred questions in this state. We have done so for the reason that there has been presented to us a number of decided cases, from the Supreme Court...