Hegberg v. St. Louis & S. F. R. Co.

• Decision Date: 06 March 1912
• Citation: 147 S.W. 192
• Parties: HEGBERG v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

147 S.W. 192

HEGBERG v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

March 6, 1912.

Rehearing Denied and Motion to Transfer to Supreme Court Denied May 6, 1912.

1. MASTER AND SERVANT (§ 278)—ACTIONS FOR INJURIES—SAFE PLACE TO WORK.

In an action for the death of a brakeman, it appeared that some time previous to the accident six freight cars had been left on a side track which had a downgrade towards the main track; that the brakes were set on only one of these cars, which was also the only one the wheels of which were blocked; that the

crew of plaintiff's train removed three of these cars, including the one on which the brake was set; and that the accident was caused by the other cars rolling down the grade and colliding with the train. There was evidence that it was the duty and custom of those placing cars on a side track to see that they were blocked and braked. Held, that a prima facie case of negligence on the part of the railroad company in failing to provide the brakeman with a safe place to work was established.

2. MASTER AND SERVANT (§§ 101, 102)—LIABILITY FOR INJURIES—UNSAFE PLACE.

It is the master's continuing and nondelegable duty to use ordinary care to furnish his employés with a reasonably safe place to work, having regard to the danger of the service and the peril to which the employés will be exposed by failure to exercise such care, and to see that such place is left in a reasonably safe condition.

3. MASTER AND SERVANT (§ 289)—ACTIONS FOR INJURIES — EVIDENCE — QUESTION FOR JURY.

Evidence, in an action for death of a brakeman caused by several freight cars on a side track, from which the crew of plaintiff's train had just uncoupled several other cars, rolling down and colliding with plaintiff's train, held to present a question for the jury whether plaintiff or another brakeman uncoupled the cars, and hence a demurrer to the evidence on the ground that plaintiff was guilty of contributory negligence as a matter of law, in failing to set the brakes on the cars left on the side track, was properly overruled.

4. NEGLIGENCE (§ 136)—QUESTIONS OF LAW OR FACT.

Although the facts claimed to constitute negligence are undisputed, if two inferences can be drawn therefrom, one consistent with ordinary care and the other tending to show negligence, the question of negligence is one of fact for the jury.

5. TRIAL (§ 156)—DEMURRER TO EVIDENCE —OPERATION AND EFFECT.

A demurrer to the evidence admits as true every fact of plaintiff's case which the evidence tends to prove, whether the evidence be direct or indirect, as well as all reasonable deductions therefrom; defendant's evidence being disregarded.

6. TRIAL (§ 140)—CREDIBILITY OF WITNESSES—PROVINCE OF JURY.

Where plaintiff, having the burden of proof, makes out a prima facie case by oral evidence, the court has no authority to sustain a demurrer to the evidence, or, if defendant introduces no evidence, to direct a verdict for plaintiff; the credibility of the witnesses being for the jury.

7. MASTER AND SERVANT (§ 243)—ACTIONS FOR INJURIES—CONTRIBUTORY NEGLIGENCE.

A brakeman was killed while riding on the pilot of an engine for the purpose of uncoupling cars therefrom. The printed rules of the company forbade brakemen going on the pilot in coupling or uncoupling cars; but there was evidence that the position of the automatic coupler made this necessary, that it was customary to do so, and that the superior officers of the company knew of the custom and acquiesced in it. Held, that if there was such a custom the brakeman's violation of the rule would not constitute contributory negligence, precluding recovery, although he would not have been killed if he had not gone on the pilot, and hence instructions to that effect were proper.

8. NEGLIGENCE (§ 122)—PRESUMPTIONS AND BURDEN—CONTRIBUTORY NEGLIGENCE.

Where plaintiff's evidence does not show contributory negligence, the burden of proving such negligence is on the defendant.

9. MASTER AND SERVANT (§ 289)—CONTRIBUTORY NEGLIGENCE—QUESTIONS FOR JURY.

In an action for a brakeman's death, which occurred while he was riding on the pilot of an engine in violation of the company's rules for the purpose of uncoupling cars, where the evidence was conflicting as to whether the handle of the automatic coupler could be lifted without going between the engine and the car, and whether there was a custom known to the company's officers to go on the pilot for this purpose, the question of contributory negligence was for the jury.

10. TRIAL (§ 79)—RECEPTION OF EVIDENCE —OBJECTIONS—REPETITION.

In an action for negligence causing death, an objection to a question asked deceased's father, as to whether he and his wife were dependent on any one for support, on the ground that it was incompetent in a suit by an administrator for the benefit of the estate, was sufficient to present that question on appeal, without repeating the objection to subsequent questions of the same class.

11. DEATH (§ 9)—ACTIONS—STATUTORY PROVISIONS.

The cause of action given by Rev. St. 1909, § 5426, in a case where the death of a person is caused by a wrongful act or neglect, which, if death had not ensued, would have given the injured party a right of action, is based on the negligence of different parties and in different particulars than a cause of action under section 5425 for the death of a person through the negligence of the servants of a railroad company while running, conducting, or managing a locomotive, car, or train of cars, and hence, if a defendant is liable under one of these sections, it necessarily is not liable under the other, and there can be no right to elect under which section to sue.

12. DEATH (§ 14)—ACTIONS FOR CAUSING— STATUTORY PROVISIONS.

An action for the death of a brakeman caused by freight cars, which had previously been left on a side track without being braked or blocked, rolling down a grade and colliding with plaintiff's train, is maintainable under Rev. St. 1909, § 5425, giving a cause of action for the death of a person through the negligence of the employés of a railroad company while running, conducting, or managing a locomotive, car, or train of cars, since, although the cars were not being operated when the accident occurred, it is sufficient if the negligence was concurrent in point of time with the operation of the cars, although not concurrent with the accident.

13. NEGLIGENCE (§ 59)—PROXIMATE CAUSE.

Liability for negligence is not affected by the length of time between the negligence and the injury, but it must appear that the injury was the natural and proximate consequence of the negligence and ought to have been foreseen by a reasonably prudent man in the light of attendant circumstances.

14. DEATH (§ 48)—ACTIONS FOR CAUSING— PLEADINGS.

A petition, setting forth the facts of an accident, from which it appears that it occurred through the negligence of the servants of a railroad company while operating its cars, is sufficient under Rev. St. 1909, § 5425, giving a cause of action for negligence of that character, although plaintiff mistakenly believed that his action was based on negligence other than that of servants of the company while operating its cars, and thought that it was therefore brought under section 5426.

15. DEATH (§ 64)—ACTIONS FOR CAUSING— DAMAGES.

In an action for negligence causing death, by an administrator, under the provisions of Rev. St. 1909, § 5425, authorizing an action by the administrator when there is no husband, wife, or minor child, and directing distribution of the amount recovered according to the laws of descent, the administrator does not sue for the benefit of the estate, but as trustee of an express trust for the benefit of those entitled under the laws of descent, since to hold otherwise would be to ignore the provision that the amount should be distributed according to the laws of descent, and hence, in such an action, evidence of the pecuniary loss sustained by the beneficiaries is competent.

16. STATUTES (§ 225)—CONSTRUCTION WITH REFERENCE TO OTHER STATUTES.

Statutes are presumed to have been enacted with full knowledge of, and with reference to, the existing condition of the law, and are to be construed as a part of the general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection with other statutes on the same subject, as well as the common law.

17. STATUTES (§ 206)—CONSTRUCTION—GIVING EFFECT TO ENTIRE STATUTE.

Every word of a statute, where it can be consistently done, should be given force and effect, especially if in harmony with the legislative intent as collected from the whole act, and words should not be disregarded as surplusage if a construction can be found which will enforce and preserve all its words.

18. DEATH (§ 78)—ACTIONS FOR CAUSING— DAMAGES—MEASURE.

The provision of Rev. St. 1909, § 5427, that in actions for wrongful death to which that section relates such amount of damages shall be allowed as the jury may deem fair and just with reference to the necessary injury resulting from the death to the surviving parties entitled to sue, is a proper rule to apply in computing the amount of compensatory damages recoverable in an action under section 5425, which provides for damages by way of a penalty, where such compensatory damages are recoverable.

19. DEATH (§ 85)—ACTIONS FOR CAUSING— DAMAGES—ELEMENTS.

In an action under Rev. St. 1909, § 5425, which provides for damages by way of a penalty for the death of a person through the negligence of the servants of a railroad company while operating its cars, where the beneficiaries of the action are not the immediate members of deceased's family, compensatory damages can be recovered only if they were in fact receiving pecuniary assistance from deceased, and then only to the extent of a fair and just estimate of their loss.

20. DEATH (§ 95)—ACTIONS FOR CAUSING— DAMAGES—ELEMENTS.

In considering the...