Harris v. Missouri Pacific Railway Company
| Decision Date | 06 January 1914 |
| Citation | 166 S.W. 335,180 Mo.App. 583 |
| Parties | EDGAR B. HARRIS, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
REVERSED.
Judgment reversed.
James F. Green and Robert T. Railey for appellant.
(1) Upon the undisputed evidence plaintiff was guilty of contributory negligence, which precludes any recovery. White on Personal Injuries, sec. 415; Spencer v. Railroad, 130 Ind. 181; Fore v. Railroad, 144 Mo.App. 557; Cleary v. Packing Co., 71 Minn. 150; Whitcomb v McNulty, 105 F. 845; Roach v. Railroad, 116 Ala. 360; Fay v. Railroad, 96 N.W. 638; Pool v Railroad, 160 U.S. 438; McGraw v. Railroad, 45 P. 383, 22 Colo. 363; Wilkinson v. Railroad, 117 N.W. 611; McLean v. Chemical Co., 165 Mass. 5; Hulien v. Railroad, 82 N.W. 710; Montague v. Railroad, 82 F. 787; Campbell v. Railroad, 124 Iowa 302; Nihill v. Railroad, 167 Mass. 52; O'Donnell v. Navigation Co., 63 N.Y.S. 290; Graham v. Railroad, 96 Va. 430; Ginnochio v. Railroad, 155 Mo.App. 163; Hitz v. Railroad, 152 Mo.App. 687, s. c. 160 Mo.App. 564. (2) Plaintiff was guilty of negligence as a matter of law in going under a car without notifying the engineer that he was going into a place of danger. Finuta v. Mfg. Co., ___ Mo.App. ___, 156 S.W. 718; Smith v. Box Co., 193 Mo. 715; Nugent v. Milling Co., 131 Mo. 241; Dickey v. Dickey, 111 Mo.App. 314; 2 Bailey on Personal Injuries (2 Ed.), sec. 477; 1 White on Personal Injuries, sec. 415; Also cases cited under Point I. (3) Plaintiff had a safe way to protect himself while doing his work (if it was necessary to go under the car), and neglected to avail himself of such safe course. Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 322; Hirsch v. Bread Co., 150 Mo.App. 174; Crane v. Exhibition Co., 168 Mo.App. 301. (4) Plaintiff's evidence as to the duty of the engineer and brakeman was incompetent. Krueger v. Railroad, 84 Mo.App. 366; Stevens v. Laswell, 110 Mo.App. 160; Allen v. Transit Co., 183 Mo. 437. (5) Defendant's instructions Nos. 5, 6, 7, 10, 11 and 12 should have been given without the modification made by the court. Hall v. Railroad, 219 Mo. 587; Wheeler v. Railroad, 159 Mo.App. 587. (6) Plaintiff's instruction No. 2, as to the burden of proof, is erroneous. Hudson v. Railroad, 101 Mo. 13; Roberts v. Telephone Co., 166 Mo. 384; Sissel v. Railroad, 214 Mo. 526. (7) The court erred in refusing to give defendant's instruction No. 9. Henry v. Railroad, 113 Mo. 535; Zeis v. Railroad, 205 Mo. 638; Maxey v. Railroad, 95 Mo.App. 309; Feary v. Railroad, 162 Mo. 99. (8) Plaintiff's instructions were all erroneous, as they proceed on the theory that plaintiff made a case by simply showing that the engineer ought to have known plaintiff was under the car, although he had no actual knowledge of that fact; and there were no sufficient facts shown to put him upon inquiry. This, too, regardless of plaintiff's gross negligence in failing to notify the engineer or conductor that he was going under the car. Authorities, supra.
George Safford and Barclay, Fauntleroy, Cullen & Orthwein for respondent.
(1) What the plaintiff, as servant, did, was not necessarily and inevitably so dangerous that it is impossible to concede that any prudent man would have acted in such a manner, and the evidence showing that he complied with a custom, known to and expressly and impliedly sanctioned by his employer, is sufficient to turn the scale in his favor and secure for him the privilege of having the quality of his conduct determined by the jury. The course of action which he was pursuing at the time the injury was received was the one customarily followed by himself or his co-employees under similar circumstances, and this circumstance negatives the inference of negligence as a matter of law. Penny v. Stock Yards Co., 212 Mo. 309; Ranford v. Railroad, 126 Ga. 452; Pittman v. Railroad, 231 Ill. 581; Railroad v. Cane, 28 Ky. L. 1018; Railroad v. Pope, 98 Tex. 535; Cunningham v. Neal, 49 Tex. Civ. App. 613; Railroad v. Cooper, 33 Tex. Civ. App. 319; Railroad v. Key, 150 Ala. 641; Floan v. Railroad, 101 Minn. 113; Pool v. Railroad, 20 Utah 210; Ditberner v. Railroad, ___ Wis. 138; Heine v. Railroad, 144 Mo.App. 443; Railroad v. Harrison, 73 Ga. 744; Kolb v. Carrington, 75 Ill.App. 159; Henry v. Railroad, 75 Iowa 84; Brady v. Railroad, 44 Colo. 283; Railroad v. Courtney, 30 Tex. Civ. App. 544; Railroad v. Walker, 125 S.W. 99; Railroad v. Lovell, 141 Ky. 249. (2) The custom, usage or practice shown in this case was proved by the testimony of persons acquainted with the facts, and in every instance it was shown that the person testifying actually had adequate knowledge of the usage as a fact, and he was therefore qualified to testify and state what that usage was. Lewis v. Railroad, 142 Mo.App. 591; Conner v. Railroad, 136 Ind. 430; Shield v. Railroad, 87 Mo.App. 644; Lawson, Usages and Customs, 101; 29 Am. and Eng. Ency. Law, 401. (3) It has frequently been held that evidence that the plaintiff's position at the time of the accident was the usual and customary position was material for the purpose of showing that he had not taken an unusual and dangerous position. Railroad v. Arnett, 137 Ala. 414; Duffey v. Consolidated Block Coal Co., 147 Iowa 225; Norris v. Packing Co., 124 Iowa 748; Manning v. Laundry Co., 189 Mass. 231; De Cair v. Railroad, 133 Mich. 578; Stauning v. Railroad, 88 Minn. 480; Schwartz v. Railroad, 30 Ohio C. C. 394; Ham v. Railroad, 13023 Ohio C. C. 496; Galloway v. Railroad, 78 S.W. 32; Railroad v. Penn, 79 S.W. 624; Railroad v. Kennedy, 214 U.S. 502; Monaghan v. Northwestern Fuel Co., 140 Wis. 457; Railroad v. Bearden, 31 Tex. Civ. App. 58; Railroad v. Waller, 27 Tex. Civ. App. 44; Overby v. Mears Min. Co., 144 Mo.App. 363; 3 Labatt's Master & Servant, 3524. (4) The system of rules or methods adopted by the master for the conduct of his business forms a part of the contract of hiring and are binding on both master and servant. The violation thereof by the master to the injury of the servant is culpable negligence. Lewis v. Railroad, 142 Mo.App. 590; Jordon v. Railroad, 202 Mo. 418; Railroad v. Burton, 79 S.W. 823; Railroad v. Heck, 17 A. & E. R. Cas. 389; 4 Thomp. Neg. (2 Ed.), sec. 4163; Penn. Co. v. Whitcomb, 111 Ind. 212; Wharton, Neg., secs. 205, 233; Luebke v. Railroad, 63 Wis. 91; Sobieski v. Railroad, 41 Minn. 169; Railroad v. Murphy, 50 Ohio 135; Railroad v. McElyea, 71 Tex. 389, 1 L. R. A. 411. (5) When the master, as in the case at bar, adopts a system of notification of danger the servant has a right to rely upon such notification, and the master is guilty of negligence if he omits the customary signal. Lewis v. Railroad, 142 Mo.App. 590; Jordon v. Railroad, 202 Mo. 418; Speed v. Railroad, 71 Mo. 303; Railroad v. Rhea (Tex.), 84 S.W. 428; Barker v. Railroad (Ky.), 21 S.W. 340; Railroad v. Schultz, 19 Ohio 639; Ring v. Railroad, 112 Mo. 220; 1 Labatt, Master & Servant, p. 452, sec. 209; Anderson v. Mill Co., 42 Minn. 424; Anderson v. Railroad, 8 Utah 128; Railroad v. Barker, 17 Ky. L. 424; Britton v. Railroad, 47 Minn. 340; Railroad v. Holcomb, 9 Ind.App. 211; Amato v. Railroad, 46 F. 464; Smith v. Air Line Co., 132 N. S. 824; Railroad v. Craft, 16 C. C. A. 834; 4 Thomp., Neg (2 Ed.), secs. 4067, 4167. (6) The customary method of the defendant in the particular respect in question is always competent to explain the acts of the parties and may be considered on the issue of defendant's negligence and plaintiff's freedom from contributory negligence. Lewis v. Railroad, 142 Mo.App. 590; Stock Yards v. Godfrey, 198 Ill. 288; Bachant v. Railroad, 187 Mass. 392; Encyclopedia of Ev., p. 474.
This is an action to recover damages for personal injuries suffered by plaintiff, while in the employ of defendant company, and alleged to have been sustained by reason of the negligence of defendant's agents and servants. Plaintiff recovered, and the case is here upon defendant's appeal.
At the time of plaintiff's injury, to-wit, August 21, 1909, he was employed as brakeman upon a "work train" of defendant, and had been so employed and working with the train crew thereof since the ninth of the same month, a period of twelve days. Upon the day in question this work train consisted, it seems, of about twenty-one cars and the engine and caboose; and prior to the time when plaintiff received his injury, it had been standing for some time upon a siding at Bushong, Kansas, waiting for a passenger train, known as No. 4, to pass that place. It appears that the tracks at this point extend nearly east and west, and that the train was standing west of the station at this place, the caboose being near the latter. It seems that, as the train was then made up, there were three cars between the caboose and the engine; then came the engine, which was headed west, and beyond or west of that was what is termed a "ledgerwood" car, which is a work car, equipped with certain machinery, and beyond that about seventeen "flat" cars. While the train was thus waiting at this place, it had been separated in order to leave open a public crossing a little distance west of the depot. In other words the train crew "cut the crossing," as it is termed, leaving the "ledgerwood" car, and all the other cars beyond that, west of the crossing, and the engine, three cars and caboose east thereof.
It appears that the train was thus standing on the side track about noon of the day in question. Plaintiff testified that the conductor and other members of the train crew left it to go to lunch, but that he remained in the caboose and ate his lunch there, and afterwards shaved himself; that while ...
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