Howell v. Wabash Railroad Company
| Decision Date | 14 June 1910 |
| Citation | 129 S.W. 725,149 Mo.App. 621 |
| Parties | J. M. HOWELL, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. Jas. D. Barnett, Judge.
Judgment reversed and cause remanded.
James L. Minnis and Robertson & Robertson for appellant.
(1) The petition does not state facts sufficient to constitute a cause of action. The petition charges that the engineer carelessly, negligently and suddenly and unexpectedly started his engine forward with an unusual jerk or start and thereby caused the caboose to be jerked, jarred and moved. The words "carelessly, negligently" add nothing to the facts alleged (Waldhier v. Railway, 71 Mo. 514) and leave the petition standing to the effect that the engineer suddenly started his engine forward with an unusual jerk or start. Admitting this to be true, the fact that a train is jerked in an unusual manner is not negligence. Saxton v Railroad, 89 Mo.App. 494; Holt v. Railroad, 84 Mo.App. 443; Saxton v. Railroad, 98 Mo.App. 494; Wendall v. Railroad, 100 Mo.App. 561; Hite v Railroad, 130 Mo. 132, and numerous other cases. (2) The court erred in refusing to direct a verdict for the defendant at the close of the evidence for the plaintiff. (a) The petition sets out the specific act of negligence of the engineer in that he carelessly, negligently, suddenly and unexpectedly started his engine forward with an unusual jerk or start. Nothing of this kind was proven by direct evidence and the allegations being specific, negligence could not be inferred. Roscoe v. Railroad, 202 Mo. 576; Orcutt v. Building Co., 201 Mo. 424; McGrath v. Transit Co., 197 Mo. 97; Bartley v. Railroad, 148 Mo. 97; Yarnell v. Railroad, 113 Mo. 570; Hamilton v. Railroad, 114 Mo.App. 504. (b) There was no direct evidence on behalf of the plaintiff that the engineer was guilty of the act of suddenly starting the engine forward as alleged in the petition; and the plaintiff being a servant and under the law defendant not being required to exercise the highest degree of care for his safety and all the evidence being readily accessible to the plaintiff, the doctrine of res ipsa loquitur does not apply, and no negligence was proven. Wigmore on Ev., sec. 2509; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Orcutt v. Bldg. Co., supra; Klebe v. Distilling Co., 207 Mo. 480; Bowen v. Railroad, 95 Mo. 268; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Patton v. Railroad, 179 U.S. 658; Railway v. Barrett, 166 U.S. 617; McGrath v. Railroad, 197 Mo. 104; Beebe v. Transit Co., 206 Mo. 419; Deckerd v. Railroad, 111 Mo.App. 117. (c) The evidence of the plaintiff showed that the jerk of the caboose could have been caused without and independent of any act of the engineer in suddenly starting the engine forward. It could be logically inferred that the jerk was caused by the running in and out of the slack, which plaintiff's own testimony shows occurred. Therefore, no negligence in the handling of the engine could be inferred from the mere fact that the caboose was jerked. 2 Labatt on Master and Servant, sec. 837; Smillie v. Dollar Store, 47 Mo.App. 406; Rutledge v. Railroad, 110 Mo. 312; Warner v. Railroad, 178 Mo. l. c. 134; Green v. Railroad, 72 S. Car. 398; 5 Am. S. Eng. Am. Cas. 165; Spiro v. Transit Co., 102 Mo.App. 262; Beebe v. Transit Co., 206 Mo. 419; Epperson v. Cable Co., 155 Mo. 346; Patton v. Railroad, 179 U.S. 658, 45 L.Ed. 361. (d) The courts will take judicial notice of the fact that jerks and jolts are incident to the operation of freight trains and such jerks being usually incident to the train's operation, the happening of the jerk does not import any negligence and without direct and positive evidence of negligence of the engineer in the manner charged in the petition, no recovery can be had. The only inference to be drawn in the absence of a positive showing of negligence would be that the jerk was merely incident to the operation of the train. Hedrick v. Railroad, 195 Mo. 104; Guffey v. Railroad, 53 Mo.App. 466; Wait v. Railroad, 165 Mo. 612; Erwin v. Railroad, 94 Mo.App. 289; Portuchek v. Railroad, 101 Mo.App. 52.
E. Rosenberger & Son and P. H. Cullen for respondent.
(1) That negligence may be inferred from circumstances there is no doubt in reason or upon authority, and likewise the due care of the person injured may be proven by circumstances. Lynch v. Railroad, 108 Mo. 1, 3 Ency. Ev., p. 103; 6 Thomp. Neg. (2 Ed.), secs. 7863, 7912; Black v. Telephone Co., 26 Utah 451; Rine v. Railroad, 100 Mo. 228; Harned v. Railroad, 51 Mo.App. 482; Maynes v. Railroad, 54 Mo.App. 585; Rosenfield v. Arrol, 44 Minn. 393; Railroad v. Gunderson, 51 N.E. 708; Canal Co. v. Akeyson, 63 N.W. 921; Lighthouse v. Railroad, 54 N.W. 321; Stockyards v. Conover, 41 Neb. 677. (2) There was strong and substantial evidence of the mismanagement of the train over which defendant had immediate and exclusive control, and with the running of which plaintiff had nothing whatever to do. Tinkle v. Railroad, 212 Mo. 445; Mitchell v. Railroad, 132 Mo.App. 143; Coudy v. Railroad, 85 Mo. 85; Clark v. Railroad, 127 Mo. 210; Blanton v. Dold, 109 Mo. 64; Dixon v. Railroad, 109 Mo. 413; Turner v. Haar, 114 Mo. 335; Burger v. Railroad, 112 Mo. 238; Harris v. Railroad, 89 Mo. 233; Ward v. Steffin, 88 Mo.App. 571; Linn v. Bridge Co., 78 Mo.App. 111; Whitehead v. Railroad, 99 Mo. 263; Sackewitz v. Biscuit Co., 78 Mo.App. 144; Hupsley v. Railroad, 88 Mo.App. 348. (3) The proof of the sudden and unusual jolt of the train, the injury to plaintiff, the attendant circumstances and the unusual physical facts raise a presumption of negligence on the part of defendant, without proof of the exact way in which the train was mismanaged. The doctrine of res ipsa loquitur applies between master and servant, where the servant is not at fault and in no manner was connected with the operation of the train. Tinkle v. Railroad, 212 Mo. 445; Mitchell v. Railroad, 132 Mo.App. 143; St. Clair v. Railroad, 122 Mo.App. 528; Haas v. Railroad, 111 Mo.App. 706; Blanton v. Dold, 109 Mo. 64; Lee v. Railroad, 112 Mo.App. 372; Miller v. Ocean Steamship Co., 118 N.Y. 199; Pasey v. Schooville, 10 F. 140; Sackewitz v. Mfg. Co., 78 Mo.App. 144; Dougherty v. Railroad, 9 Mo.App. 484. (4) A servant assumes those risks alone which remain after the master has exercised ordinary care. It is the duty of the master to exercise reasonable care, commensurate with the nature of the business, to protect a servant from the hazards incident to it. Charlton v. Railroad, 200 Mo. 443; Curtis v. McNair, 173 Mo. 270; Williams v. Railroad, 119 Mo. 316; Rodney v. Railroad, 127 Mo. 676; Herdler v. Stove & Range Co., 136 Mo. 3. (5) The rule has been frequently announced that the failure of a party to call a friendly witness, having personal knowledge of the facts in issue, raises a presumption or inference that the witness's testimony would have been detrimental to him. This rule has been applied where a master or employer failed to call his servants or employees, as where a railway company failed to call the crew in charge of a train on account of the negligent management of which a recovery was sought. Am. and Eng. Ency. Law, p. 1261; Railroad v. Ellis (C. C. A.), 54 F. Rep. 481; Railroad v. Wall, 75 Ga. 282; Railroad v. Culler, 75 Ga. 704; Railroad v. Holcombe, 88 Ga. 9; Railroad v. Douglass, 94 Ga. 547; Railroad v. Morrison, 102 Ga. 319; Day v. Railroad, 35 La. Ann. 694; Fonda v. Railroad, 71 Minn. 438, 70 Am. St. Rep. 341; Hicks v. Railroad, 47 A.D. 479; Reyburn v. Railroad, 187 Mo. 575; Lynch v. Railroad, 208 Mo. 1; Baldwin v. Whitcomb, 71 Mo. 658; Kirby v. Talmadge, 160 U.S. 379; Roney v. Moss, 74 Ala. 300; Wood v. Hally Mfg. Co., 100 Ala. 326, 46 Am. St. Rep. 56.
Personal injury case. The accident occurred January 30, 1907, after dusk and on a freight train of defendant company running at the time over the line of the Missouri, Kansas & Texas Railroad Company near Hannibal. The train was composed of forty-two freight cars, one passenger coach and a caboose the two latter cars being connected and the caboose at the rear of the train. The passenger coach was equipped with air-brakes, but several freight cars ahead of it were not; others still further ahead and near the engine were. Hence the rear of the train was not so equipped with air-brakes it could be controlled from the engine; a fact not relevant to the issues presented, but shown by the testimony. There was a general descent in the grade of the railroad from seven or eight miles or more south of Hannibal to the depot at that point, but this descent was not uniform and at several places there were short depressions in the grade followed by elevations. The train had moved down one of those slight depressions, the engine and front part had climbed a slight rise, and the engine had passed over the crest, when there was a sudden jerk of the train which caused plaintiff's injury. He had been sitting in the cupola of the caboose but had climbed down to put out a red light at the rear to warn any following train, because his train was behind time and might be overtaken. Just before the jerk plaintiff had stooped to the floor to get the light, and at the instant of the jerk had just arisen into an erect position. The jerk turned him a complete somer-sault, broke his kneecap and rendered him permanently lame. It likewise threw the conductor of the train to the floor of the caboose, but did not injure him. Plaintiff, who had had long experience in the work of a brakeman and some in handling engines, testified the jerk was just as fast a movement as a man could get; he could not see one faster; was the worst he ever saw; was a wonder it did not tear out the side of the caboose;...
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