Hunt v. Missouri R.R. Co.

• Decision Date: 12 June 1883
• Citation: 14 Mo.App. 160
• Parties: MARTHA HUNT, Respondent, v. MISSOURI RAILROAD COMPANY ET AL., Appellants.
• Court: Missouri Court of Appeals

14 Mo.App. 160

MARTHA HUNT, Respondent,

v.MISSOURI RAILROAD COMPANY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 12, 1883.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

DYER, LEE & ELLIS, for the appellants: There is no presumption of negligence against a common carrier by reason of the fact that a passenger is injured on its conveyances.-- Yerkes v. Packet Co., 7 Mo. App. 267. When the facts as to negligence are clear and undisputed, the court should declare to the jury the inference to be drawn from the facts.-- Bell v. Railroad Co., 72 Mo. 41, 58.

JOHN WICKHAM, for appellant Higgins: The court erred in refusing appellant Higgins a separate trial.--Rev. Stats., sect. 3603; Spaulding v. Suss, 4 Mo. App. 551; Colgrove v. Railroad Co., 6 Duer, 430. The court erred in overruling appellant Higgins' objection to the introduction of any testimony against him under the petition which fails to state any concurrent negligence rendering both defendants liable.--2 Redf. on Rys. (5th ed.) 248, and note 10. The court erred in taking the question of contributory negligence, which is one of fact, from the jury by instructing them, on behalf of the respondent, that there was no evidence in the case of any contributory negligence on the part of George B. Hunt directly contributing to his death.-- Barnes v. Bellefontaine R. Co., 50 Mo. 140; Smith v. Union R. Co., 61 Mo. 591; Hulsenkamp v. Citizens' R. Co., 37 Mo. 553, 554; s. c. 34 Mo. 54; Beers v. Housatonic R. Co., 19 Conn. 57; Clark v. Eighth Av. R. Co., 36 N. Y. 135; Thompson on Car. Pass. 444 et seq. The court erred in refusing to instruct the jury that if they found there was any want of care on the part of the deceased, Geo. B. Hunt, or on the part of the car driver, which contributed directly to the injury which caused the death of said Hunt, they should find for appellant Higgins. It was error in the court to hold the appellant Higgins liable for the neglect of the car driver, which was the active cause of the injury.-- Thorogood v. Bryan, 8 C. B. 115; Brown v. N. Y. Central R. Co. 31 Barb. 385; s. c. 32 N. Y. 577, 602; Mooney v. Hudson River R. Co., 5 Robt. 553; Lake Shore R. Co. v. Miller et al., 25 Mich. 277; Lockhart v. Lichtenthaler, 46 Pa. St. 164.

W. C. JONES and A. R. TAYLOR, for the respondent: The granting of separate trials to defendants is within the discretion of the trial court.--Rev. Stats., sect. 3603. Higgins was guilty of negligence in suspending a rope across a street, where cars were passing, so low to the ground as not to let the cars pass. And the negligence of each defendant continued up to the moment of the fall of the derrick and the killing of the man. This made the defendants jointly and severally liable.--2 Thompson on Neg. 1088; Colgrove v. Railroad Co., 6 Deur, 430; Thompson on Car. 284, 289; Bennett v. Railroad Co., 36 N. J. 225; Rider v. Freeman, 50 N. H. 420; Barrett v. Railroad Co., 45 N. Y. 628; The State v. Miseream, 64 N. Y. 138; Chapman v. Railroad Co., 19 N. Y. 341.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff sues under sections 2121 and 2122 of the Revised Statutes, for damages sustained in the killing of her husband, while he was riding on a street car of the defendant corporation. There was a jury verdict for $5,000 in favor of the plaintiff and judgment accordingly against both the defendants.

The testimony tended to show that defendant Higgins was a contractor for reconstructing the “Dorris Row” of buildings, on the north side of Olive Street in the city of St. Louis. He used in his work a movable derrick, about thirty-eight feet in height, which was placed on the sidewalk and leaned toward the building, from five to seven feet from the perpendicular. It was secured in position by two guy ropes, about eighty-seven feet apart at the lower ends which extended from the top of the derrick to the other side of the street, and were there tied to upright posts, at the height of six or eight feet from the ground. These guys were, in fact, one continuous rope, passing through pulleys at the top of the derrick. There was also a rope which held the top of the derrick towards the building. This was tied to an upright piece of scantling, within an upper story, which was nailed at the top and bottom to the joist and the floor, and was otherwise reinforced by secured bits of scantling. Some ten or fifteen minutes before the accident hereinafter mentioned, the derrick was moved about two feet westward, and the west guy rope which, until then, had been fastened at a point forty feet from the other, was moved and tied to a post forty-seven feet further west. There was a good deal of testimony tending to show that the workmen, in making these adjustments, used much care in providing against a possible contact of the ropes with passing street cars. The plaintiff's husband, a passenger, was standing upon the rear platform of car No. 93 of the defendant railroad company, going east. It appears that the west guy rope was caught by a corner of the ventilator, or cupola, on top of the car, with the effect of pulling the derrick over, so that it tore away the scantling to which the inner stay rope was fastened, and, falling upon the rear platform of the passing car, killed the plaintiff's husband. There was testimony tending to show that, a few minutes before the accident, and after the new adjustment of the derrick and ropes, a car, whose height exceeded that of No. 93, had passed along in the same direction, without any mishap, and that this occurrence was in view of the driver of No 93. The derrick had been in use at that place for several months before, and was similarly used for a long time after the catastrophe, without any interference with the passing cars.

A special panel of eighteen jurors was summoned, on the application of the defendant corporation. When the case was called for trial, each defendant formally demanded a separate trial, which was in each instance refused by the court. Each defendant claimed a right of peremptory challenge of three jurors. These claims were also denied.

Our statute (Rev. Stats., sect. 3603) provides that where there are several causes of action united in a petition, or where there are several issues, and the court shall be of opinion that all or any of them should be tried separately by the court or jury, it may, on the application of either party, direct separate trials. The question is clearly left to the sound discretion of the court, whose action therein can not properly be reviewed on appeal, unless it plainly appears that the discretion has been abused. We can not perceive that there has been any such abuse in the present instance. Nor do we discover that any fair reason existed for the increased expense, delay, and inconvenience of a separate trial for each defendant. There was a single cause of action, to wit: that the plaintiff had been deprived of her husband, and his life, through the negligence of the defendants. The issue to be tried was, whether the defendants (or either of them) were guilty of a negligence which caused the death. Neither the cause of action nor the issue was duplicated by the fact that the negligence may have appeared in two or more forms. If two men, one with a club and the other with a dagger, assault and wound a third person, every blow with the club is a wrong committed by the man who wields it, separate from and independent of the dagger thrusts inflicted by the other, and vice versa. Yet no one will deny that both may very properly be sued or prosecuted and tried together for the common injury. The theory upon which the plaintiff here sued and recovered was that the acts of negligence which caused the death were not merely concurrent, but co-operative and interdependent, as between the two defendants and the doings of each. Thus, the supposed negligence on the part of defendant Higgins, in leaving the guy rope too low, or in insufficiently mooring by the stay rope and scantling within the building, would have been harmless but for the negligence of the car driver in driving against the guy, instead of stopping when he reached it. On the other hand, no amount of reckless and rapid driving would have done injury without the co-operative negligence which misplaced the guy rope and left the stay rope fastening too weak to withstand the shock of the car running against the guy. Certain it is that the acts or omissions of both defendants, whether negligent or not, were necessary to effect the injury for which the plaintiff sues. There is no legitimate antagonism between the several defences, as counsel seem to suppose. If there was negligence on the part of one of the defendants, this fact would make it neither more nor less true that there was negligence, or a total absence thereof, on the part of the other. If one defendant could show such prudent care and management as would disprove every imputation of negligence, his defence would be complete, whatever might be the success or failure of his codefendant in the same regard. The most that one defendant could hope for from impeaching the conduct of the other, would be the sharing of their responsibility upon a verdict against both. But this could not be anticipated unless both were in fault.

Again: if the defendant contractor and the defendant corporation had agreed together beforehand that the one should misplace the guy and the other should drive against it in order to produce harm, there could be no question of their joint liability for the consequences. Why, then, should there be any when their concurrent actions imply concurrent negligence, whose common tendency is to produce a single injurious result? Both the setting of the trap, and the springing of it at the right moment, were necessary to the fatal capture. There was no error in the refusal of separate trials; and this being true, it follows naturally that there could be no separate and cumulative rights of...