Hurlbut v. Wabash Railroad Company
| Decision Date | 26 November 1895 |
| Citation | 31 S.W. 1051,130 Mo. 657 |
| Parties | Hurlbut v. Wabash Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
F. W Lehmann and Geo. S. Grover for appellant.
(1) The plaintiff in this cause was permitted to recover upon a cause of action not stated in his petition. Buffington v Railroad, 64 Mo. 246; Waldheir v. Railroad, 71 Mo. 514; Edens v. Railroad, 72 Mo. 212; Price v Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Gurley v. Railroad, 93 Mo. 450; Haynes v. Trenton, 108 Mo. 132. (2) The relation of master and servant did not exist between the plaintiff and the Wabash railroad company at the time of this accident. McKinney on Fellow Servants, sec. 18, p. 43, and cases cited; Wood on Railroads [Minor's Ed.], 1894, sec. 388, p. 1770, and cases cited; Wood on Master and Servant [2 Ed.], sec. 424, p. 826, and cases cited; Patterson on Railway Accident Law, sec. 104, p. 103, and cases cited; Smith v. Railroad, 85 Mo. 418; Roddy v. Railroad, 104 Mo. 234; Heizer v. Mfg Co., 110 Mo. 605; Railroad v. Washington, 43 Am. & Eng. R. R. Cases, 688; 7 Am. & Eng. Encyclopedia of Law, p. 837; 14 Am. & Eng. Encyclopedia of Law, p. 838; Railroad v. Maryland, 10 Am. & Eng. R. R. Cases, 792; Zeigler v. Railroad, 52 Conn. 543; In re Railroad, 54 Vt. 200; Hitte v. Railroad, 29 Am. & Eng. R. R. Cases, 586; Gibson v. Railroad, 2 Ontario, 658; Byrnes v. Railroad, 61 F. 605. The defendants were not partners under the agreement in evidence. Authorities cited supra; Ashby v. Shaw, 82 Mo. 76. (3) There might have been four causes of this accident, as shown by the plaintiff's testimony: First. The defective track. Second. The frozen ground. Third. The intensely cold weather prevailing at the time. Fourth. The alignment of the engine. Which one of these causes produced the accident the plaintiff did not undertake to show. This defendant was clearly not responsible for either one of the first three causes named. In order to render it liable in this action, therefore, it was incumbent upon the plaintiff to show by his proof that the accident was caused by the improper alignment of the engine alone. Failing to do this, he should not have been permitted to recover. Hudson v. Railroad, 101 Mo. 13; Breen v. Cooperage Co., 50 Mo.App. 202; Jones v. Yeager, 2 Dillon, 68; Callahan v. Warne, 40 Mo. 136; Smith v. Railroad, 37 Mo. 292; Searles v. Railroad, 101 N.Y. 661; Taylor v. City of Yonkers, 105 N.Y. 209; Dobbins v. Brown, 119 N.Y. 188; Pierce v. Michel, 1 Mo.App. 75. (4) The court gave improper instructions at the plaintiff's request. Authorities cited supra; Ely v. Railroad, 77 Mo. 34; Francis v. Railroad, 110 Mo. 387. (5) The court refused proper instructions asked by defendant. Authorities cited supra.
C. C. Bigger and A. W. Mullins for respondent.
(1) It was the duty of the defendant to have provided and furnished a locomotive engine, which pulled the train on which plaintiff was employed, properly constructed and in a reasonably safe condition for the use to which it was applied. Wood on Master and Servant, sec. 329, p. 687; Bowen v. Railroad, 95 Mo. 268; Gibson v. Railroad, 46 Mo. 163; Lewis v. Railroad, 59 Mo. 495; Siela v. Railroad, 82 Mo. 430; Porter v. Railroad, 71 Mo. 66; Gorham v. Railroad, 113 Mo. 408; Swadley v. Railroad, 118 Mo. 268; Bailey v. Railroad, 139 N.Y. 302; Railroad v. Daniels, 152 U.S. 684; Railroad v. Herbert, 116 U.S. 642; Hough v. Railroad, 100 U.S. 213. (2) And the plaintiff had the right to assume that the said engine had been properly constructed and that it was in good repair. Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 71 Mo. 66; Banks v. Railroad, 40 Mo.App. 458. (3) The evidence conclusively shows, we think, that the plaintiff was in the employ of the defendant Wabash railroad company at the time of the accident. (4) The plaintiff was not guilty of contributory negligence in riding in the cab of the engine. The evidence shows and the jury found that he was riding there by the direction and under the order of the conductor of the train. (5) The instructions given by the court for the plaintiff are, we think, unexceptionable, and those given for defendant fully and strongly presented every defense made by it. Considered all in all there is no just ground for complaint by defendant. (Authorities supra.) (6) The evidence was amply sufficient to support the verdict of the jury. Wharton on Negligence, sec. 420; Ireland v. Plank Road Co., 13 N.Y. 533; Coontz v. Railroad, 121 Mo. 652; Swadley v. Railroad, 118 Mo. 268; Bowen v. Railroad, 95 Mo. 268; Banks v. Railroad, 40 Mo.App. 458; Bailey v. Railroad, 139 N.Y. 302; Lilly v. Railroad, 107 N.Y. 566; Bennett v. Ins. Co., 39 N.W. 488; McDermott v. Railroad, 8 P. 519; Lavigne v. Mills Co., 10 A. 62. (7) When, however, there is any evidence entitling the party to have the case submitted to the jury, and a judgment is rendered on the verdict by the trial cout, such judgment will not be reversed upon the evidence by the appellate court. Gillespie v. Stone, 43 Mo. 350; McAfee v. Ryan, 11 Mo. 364; Bank v. York, 89 Mo. 369; Blanton v. Dold, 109 Mo. 64; Grove v. City of Kansas, 75 Mo. 672; Baum v. Fryrear, 85 Mo. 151.
The suit is to recover damages on account of personal injuries received by plaintiff while acting in the capacity of brakeman on a train, while running over the track of the Omaha & St. Louis railroad between Pattonsburg and Stanberry, in this state. After a trial in the circuit court of Linn county a judgment was rendered in favor of plaintiff for $ 6,000, and defendant appealed.
At the date of the injury the defendant company owned a railroad from St. Louis, by way of Moberly and Brunswick, to Pattonsburg, and the St. Louis & Omaha Railway Company owned a road from Pattonsburg, by way of Stanberry, to Council Bluffs, Iowa. At that time there was an existing agreement between said companies, by which continuous trains were run over these connected roads each way between St. Louis and Council Bluffs.
Under this agreement, engines of the Wabash company were used on the Omaha road between Pattonsburg and Stanberry, for the use of which the Omaha company paid $ 150 rental on each. The crews on trains coming over the Wabash road were not changed at Pattonsburg, but carried the trains on to Stanberry. The same crews from Stanberry carried trains on to Moberly and Brunswick. The men composing these crews were employed by the Wabash company, but while on the Omaha part of the road were under the control and direction of that company. They were paid by each company in proportion to the number of miles run upon the respective roads. The Wabash company had the sole power to employ and discharge trainmen, but an objection to any employe by the Omaha company was respected, and he would not be sent over that road again. The Wabash company was required to pay all cost of repairing engines.
In February, 1892, plaintiff was employed as a brakeman by the defendant, and on the night of his injury he was engaged as brakeman on a freight train running from Stanberry to Pattonsburg. The night was intensely cold. About two miles from Pattonsburg, while the train was descending a long grade, the left-hand side rod broke and struck the cab in which plaintiff was sitting, by which he was thrown out upon the ground and permanently injured.
Under the petition defendant was charged with negligence in failing to provide plaintiff with reasonably safe, secure, and proper appliances and machinery with which to perform the duties of his employment. The petition states "that the side rods or bars which were being used to propel the drive-wheels of the locomotive drawing said train of cars, upon which plaintiff was employed by defendants as brakeman, were, at the time plaintiff so received said injuries, insufficient for the purpose for which they were being used, and were in a dangerous, defective, and unsafe condition, and the fastenings and journals which attached said side rods to the drive-wheels of said locomotive, commonly called 'pins,' were insufficient for such purpose, and were in a dangerous, defective and unsafe condition; that the defendants well knew of the insufficient, dangerous, defective, and unsafe condition of the siderods, fastenings, journals and 'pins' of said locomotive, or by the exercise of ordinary care, prudence and foresight might have known of the insufficient, dangerous, defective, and unsafe condition of said appliances and machinery; that plaintiff had no knowledge of the insufficient, dangerous, defective, and unsafe condition of said machinery, appliances, and locomotive, nor could he, by the exercise of ordinary care, prudence and foresight, have ascertained the dangerous, defective and unsafe condition thereof."
It was charged, as cause of the accident, that the side rods which were attached to and propelled the drive wheel of the locomotive became detached from the journals, commonly called pins, and struck and crushed the car by which plaintiff was forcibly thrown to the ground.
The answer was a general denial, a plea of contributory negligence, and a plea that at the time of his injury plaintiff was in the employ of the Omaha company, and the accident occurred on its line of road. The reply put in issue the new matter contained in the answer.
The evidence tended to prove that the engine was not properly aligned, or, as the employes expressed it, "was out of tram," at the time of the accident, and had been for some time, and that defendant's master mechanic whose duty it was to keep engines in repair, had notice of its condition and neglected to repair it. The...
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