Hawkins v. Missouri Pacific Railway Company

• Decision Date: 06 July 1914
• Citation: 170 S.W. 459,182 Mo.App. 323
• Parties: CARRIE BERTHA HAWKINS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

170 S.W. 459

182 Mo.App. 323

CARRIE BERTHA HAWKINS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

July 6, 1914

Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.

AFFIRMED.

Judgment affirmed.

Martin L. Clardy and Edward L. White for appellant.

(1) The plaintiff's petition failed to allege facts sufficient to constitute a cause of action and the demurrer should have been sustained at the close of the plaintiff's evidence. Fuchs v. Railroad, 167 Mo. 620; Beasley v Transit Co., 148 Mo. 421; Plefka v. Knapp, etc Co., 145 Mo. 316; York v. Railroad, 117 Mo 405; Casey v. Transit Co., 116 Mo.App. 235; 205 Mo. 721; Clark v. Railroad, 219 Mo. 541. (2) The court erred in admitting incompetent questions and answers on the impaneling of the jury. State v. Hoffman, 99 N.E. 295; State v. Brown, 188 Mo. 451; State v. Bethume, 25 S.E. 181; Theobald v. Transit Co., 191 Mo. 395; Commonwealth v. Vanhorne, 188 Pa. 143; 41 A. 461; State v. Mysenberg, 171 Mo. 1; Ryan v. State, 115 Wis. 488; 92 N.W. 271. (3) The court erred in giving improper and illegal instructions to the jury on behalf of the plaintiff. Riegel v. Biscuit Co., 169 Mo.App. 514; Gilson v. Railroad, 76 Mo. 286; Hill v. Drug Co., 140 Mo. 440; Abbott v. Mining Co., 112 Mo.App. 557; Percell v. Railroad, 126 Mo.App. 43; Toncrey v. Railroad, 129 Mo.App. 596.

John G. Paxton, John H. Atwood and William B. Bostian for respondent.

(1) The defendant owed the duty to the servants of the Milling Company to furnish cars to be handled by them free from defects from which they might sustain injury. Roddy v. Railroad, 104 Mo. 234; Fassbinder v. Railroad, 126 Mo.App. 563; Strayer v. Railroad, 170 Mo.App. 514; Sykes v. Railroad, 117 Mo. 713. (2) Defendant is liable though the negligence of Waggoner-Gates Milling Company's servants may have concurred in bringing about the death of deceased. Newcomb v. Railroad, 169 Mo. 409; Moon v. Railroad, 48 N.W. 679, 46 Minn. 106; Asher v. City of Independence, 163 S.W. 514. (3) The liability of the carrier in any such case is the same whether it owned the car or not. Sykes v. Railroad, 117 Mo. 713. (4) The fact that the plaintiff received $ 1000 from Waggoner-Gates Milling Company and gave them a covenant not to sue is no defense to plaintiff's action. Arnet v. Railroad, 64 Mo.App. 368; Judd v. Walker, 158 Mo.App. 156.

OPINION

TRIMBLE, J.

Plaintiff sues for damages sustained by the death of her husband which she alleges was caused by the negligence of the defendant.

The husband was an employee of the Waggoner-Gates Milling Company. A switch from defendant's road led to the plant of this company and ran east and west between its elevator on the north and its mill on the south. The mill had a platform about four feet high, five feet wide and sixty feet in length, alongside the mill and next to the switch track. Across the track in the elevator was a door with a sill and a flight of steps leading to the ground. A heavy board fourteen feet long extended from this doorway across the track to the platform, and was used by the mill employees as a footbridge to pass from one building to the other without descending to the ground. The mill scales were between the mill and elevator and under the track, and this board was from a foot to three feet west of the west end of the scales.

The defendant railroad would deliver cars loaded with wheat and consigned to the milling company and place them on the switch at a point east of the plant, and, after setting the brakes, would leave them there. When the mill employees desired to unload a car they would go to this point, release the brakes on the nearest car, and by means of a "pinch bar" start it toward the scales, the track being slightly down grade. One of the mill employees would be on top of the car and at the proper time would apply the brakes and stop the car on the scales where it would be first weighed, then the wheat would be unloaded, the weight of the empty car obtained, and then the footbridge across the track would be turned to one side and the empty car pushed on west to a point where later the railroad company would take it away. The footbridge would be replaced as soon as the empty car had passed.

Late in the afternoon of May 4, 1911, the defendant placed six cars loaded with wheat on the switch at the east end thereof. These cars were coupled together and the brakes on each were set. The next morning the mill hands moved one car down to the scales and unloaded it in the manner above described. They then went to the next car. One of the men, without looking to see if the brake shoes were against the wheels, took a club and struck the brake chain a sharp blow to see if it was taut. If it was, this indicated that the brakes were set. The chain was taut and the man got upon the car and unloosed the brakes. The car was then uncoupled from the others and by means of the "pinch bar" was started along the track toward the scales. It moved so slowly that the man on the car did not attempt to tighten the brakes till he was very near the scales. When he did so he found that, although he had turned the brake wheel until it was tight the brake did not work and would not stop the car. He called to plaintiff's husband who was on the platform to "chock" the car, that is, place a billet of wood in front of the wheel. Plaintiff's husband ran along the platform, sprang off to the ground and ran around to meet the car intending to chock it. He did not get in the way of the car, but when perhaps ten feet from it, the car, with its load weighing 100,000 pounds, passed on over the scales, struck the footbridge and threw it around to one side. The footbridge struck plaintiff's husband on the jaw and killed him instantly. Plaintiff brought this suit and recovered judgment below.

Defendant urges that its demurrer to the evidence should have been sustained; that the injury was caused by the independent, intervening negligence of the mill hands, unconnected with any negligence of defendant; that the mill hands were negligent in leaving the footbridge across the track while engaged in moving a car down to the scales and within a few feet of the bridge; and that this negligence caused the injury. This claim may also possibly involve the charge of negligence against the mill hand on the car in calling deceased into a place of danger after it was discovered that the brake would not work. As to this last feature, however, it would seem that it would fall more properly within the domain of the question whether deceased was guilty of contributory negligence. At any rate, the negligence of the mill hands would still consist in leaving the footbridge across the track while bringing a car down to it, and the calling to deceased to chock the car was a mere incident in the failure of the brake to stop the car. Calling to deceased to chock the car was not a command to get in the way of the footbridge, and telling him to chock it was only a feature of the inability to stop the car by means of the brake.

Was this negligence on the part of the mill hands an independent intervening cause of the injury? If defendant was negligent in furnishing a car, with a defective brake, to the milling company, and the injury was caused by the concurring force of that negligence and also the negligence of the mill company, so that it is reasonable that both directly contributed to the injury and the latter negligence alone would not have sufficed to produce it, the defendant is liable notwithstanding it may not have anticipated the interference of the latter force which, concurring with its own negligence, produced the damage. [Newcomb v. New York Central, etc. R. Co., 169 Mo. 409, l. c. 427; 1 Sherman & Redfield on Neg. (6 Ed.), Sec. 31 and Sec. 39; Moon v. Northern Pacific Railroad, 46 Minn. 106, 48 N.W. 679.] If the negligence of the defendant and the milling company concurred to proximately cause the injury both would be liable. [Asher v. City of Independence, 163 S.W. 574.] Of course, this does not mean that a defendant should be held liable for all the actual consequences of his wrongful acts, when they are such as no one, with the fullest knowledge of the circumstances, would have considered likely to occur. But if defendant was negligent and that negligence concurred with the negligence of the milling company in proximately producing an injury to plaintiff's husband, then defendant is liable. On the feature of the case now under discussion, clearly the negligence of the mill company's servants, while a concurring cause, was not an independent cause. It did not supersede the alleged original cause nor would it alone and of itself have caused deceased's death regardless of the alleged defective brake. The demurrer ought not to have been sustained, therefore, on the ground that the mill company's negligence was an intervening independent cause.

As to whether or not the alleged negligence of the defendant was a proximate cause, the evidence shows that the injury was a natural result of the brake failing to work and followed as a natural and continuous sequence thereof under the known conditions in existence at that place. The foot bridge was maintained across the track at all times except when taken down temporarily to let cars pass. It remained up while cars were being brought down to the scales as above indicated, and this course had been pursued for a long time prior to the accident, and was fully known to the servants of defendant who placed the loaded cars in position on the east end of the switch. The injury resulting from a car getting beyond control on account of a defective brake was one that could have been reasonably foreseen as naturally and likely to follow...