Hollenbeck v. Missouri Pac. Ry. Co.

• Decision Date: 03 March 1896
• Parties: HOLLENBECK v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

34 S.W. 494

HOLLENBECK v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 3, 1896.

RAILROAD COMPANY — NEGLIGENCE — EMPLOYE — CONTRIBUTORY NEGLIGENCE — WITNESS — EXAMINATION — ASSUMPTION OF FACT — WAIVER OF OBJECTIONS — HARMLESS ERROR — EXCESSIVE DAMAGES.

1. A rule of defendant railroad company having been read in evidence, instructing its employés "not to go between the cars to make couplings unless they are moving at a slow and safe speed," and a witness having testified that there may be a safe rate of speed for such purpose, it was not assuming a fact which had not been proven to ask another witness "what was a safe and slow rate of speed to do coupling and uncoupling."

2. Though it was improper to ask plaintiff, in an action for personal injuries, whether he had a family, defendant cannot complain of the prejudicial effect thereof, where no objection was made until after the answer was given, and no request was made to exclude the testimony from consideration by the jury.

3. While it was not proper, in an action against a railroad company by an employé, for personal injuries, to read the Kansas statutes pertaining to the liability of railroad companies to their employés, and the construction of the statutes of that state, though the injuries were sustained in Kansas, defendant was not prejudiced thereby.

4. Evidence that a brakeman, while about to make a coupling between moving cars, stepped into a ditch, which was from four to six inches deep, and was injured; that he was not aware of the existence of said ditch; that a rule of defendant railroad company permitted couplings to be made when the cars were moving at a safe rate of speed; and that defendant's foreman, who had charge of the roadbed, knew of the ditch for several months before the accident, — established a prima facie case of negligence on the part of defendant.

5. Where a rule of a railroad company permitted employés to go between cars moving at a slow and safe speed, to make couplings, it was not contributory negligence, as a matter of law, for a brakeman to go between cars moving at a rate of from three to four miles per hour, there being evidence that that was a safe rate of speed, and that said brakeman did not have time to uncouple the cars while the train was standing still, though he was in control thereof.

6. A judgment of $10,000 damages, rendered in an action against a railroad company for loss of a leg by a brakeman, who at the time of the accident was 32 years old, and earning $65 per month, will not be reversed for excessive damages, the verdict not appearing to have been the result of passion or prejudice.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by F. J. Hollenbeck against the Missouri Pacific Railway Company for damages for personal injuries. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Elijah Robinson, for appellant. L. H. Waters, for respondent.

BURGESS, J.

This is an action for damages for personal injuries sustained by plaintiff while in the service of defendant as a brakeman, because of an alleged defect in its roadbed, which resulted in the loss of his left leg. The answer alleges contributory negligence on the part of plaintiff. He recovered a verdict and judgment for $10,000 damages, and defendant appealed.

The facts are substantially as follows: The accident occurred at a station on the line of defendant's road, in the state of Kansas, on the 17th day of February, 1892. At the time plaintiff was in the employ of defendant in the capacity of brakeman and baggageman on what is known as a "cut-off," running from Marquette to Gypsum City, in said state, — a distance of 27 miles. The train was a mixed train, composed of one passenger coach and a number of freight cars. It left Marquette at 7:41 a. m., and was due to arrive at Gypsum City at 9:05 a. m.., thus giving an hour and 24 minutes in which to make the run. Besides the side track near the depot at Lindsborg, there is a spur track, used for the purpose of loading and unloading cars. When the train reached Lindsborg, on the morning of the accident, there was a car on the spur track, which was to be taken in the train, and one standing on the main line, or in the train, which was to be left on the spur track. Plaintiff took charge of the train, as it was his custom to do, and undertook to do the switching. During the switching it became necessary to move the train north of the point of the spur track, in order to back it in on the main track. When it had gotten far enough north for that purpose, plaintiff signaled the engineer to back down, and started north to meet the train. Near where he met it there were two depressions in the track, one somewhat larger than the other. He went in between the cars to uncouple them, walked along with the motion of the cars, and, while doing so, stepped in the smaller ditch, fell down, and was run over by the cars and injured. The ditches were dug the latter part of the preceding summer, and were variously estimated by the witnesses to be from four to six inches deep. Plaintiff had been running over this cut-off twice a day for more than a year before the accident; occasionally switching cars at this station, and placing them on and taking them off this spur track. The ditch which caused plaintiff to fall was in plain view. When he met the train, it was then moving from three to four miles an hour. While doing the switching, plaintiff had control of the movements of the train. He testified that he did not know the ditch which caused him to fall was there, before that time; that he had never been over that part of the track; and that it was perfectly safe to go in between cars for the purpose of coupling them, and to walk along with them, and in between them, when only moving at the rate of from three to four miles per hour. On cross-examination he stated that he knew that it was dangerous to go in between cars when they were in motion. The evidence on the part of the defense tended to show that plaintiff had knowledge of the ditch before the accident. Plaintiff was something over 32 years of age at the time, and earning $65 per month. After the injury he was taken by defendant to its hospital, in Kansas City, where his injured limb was dressed by the company surgeons, and the broken bones wired in place. His leg was amputated at the hospital, above the knee, on the 16th day of June, 1892. He remained at the hospital for six months.

1. During the trial, plaintiff asked one of his witnesses, J. A. Foster, the following question: "What is a slow and safe rate of speed to do coupling and uncoupling when switching cars?" To this question defendant objected upon the ground that it assumed that there was some rate of speed which would be safe for coupling and uncoupling cars. The objection was overruled, and the witness answered: "About three or four miles an hour; about as fast as a man could walk, walking fast." It is now insisted that the question assumed a fact which had not been proven, — that is, that there was "a safe rate of speed for coupling cars and uncoupling cars," — and there was error committed in permitting it to be answered. It may be conceded that a question based upon the assumption that a certain fact has been proven, when it has not been, is improper. Railroad Co. v. Thompson, 10 Md. 76; People v. Graham, 21 Cal. 261; 1 Greenl. Ev. § 434. Before the question was asked, plaintiff had read in evidence a rule of defendant company, which is as follows: "Great care must be used in coupling and uncoupling cars. Do not go between the cars unless they are moving at a slow and safe speed, nor attempt to make any coupling unless the drawbars and other coupling appliances are known to be in good order." This...