Kane v. Missouri Pac. Ry. Co.

• Decision Date: 10 May 1913
• Citation: 157 S.W. 644
• Parties: KANE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

157 S.W. 644

KANE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

May 10, 1913.

Rehearing Denied June 2, 1913.

1. APPEAL AND ERROR (§ 274) — EXCEPTIONS — SUFFICIENCY.

Where defendant's motion for a new trial and his motion in arrest of judgment were overruled on the same day, his bill of exceptions, stating that to such ruling he then duly excepted, will be referred to each ruling, if announced separately, and if covered by one announcement would be a due exception necessarily relating to each of them, without excepting separately and specifically to the ruling on each motion.

2. DAMAGES (§ 208) — INJURY RESULTING FROM ACCIDENT — QUESTION FOR JURY.

On evidence in a brakeman's action for injuries from the derailment of his engine, held, that whether plaintiff's condition was due to the derailment or to a prior existing disease was for the jury.

3. EVIDENCE (§ 472) — OPINION EVIDENCE — CONCLUSION INVADING PROVINCE OF JURY.

In a brakeman's action for injuries from the derailment of his engine, a question whether his condition was the result of the blow received in that accident, to which witness replied that the trouble resulted from the violence sustained, was improper as invading the province of the jury.

4. TRIAL (§ 412) — ERRONEOUS ADMISSION OF EVIDENCE — CURE BY WITHDRAWAL.

Error in permitting a question and answer so couched as to bring out a conclusion invading the province of the jury was corrected, when the question and answer were withdrawn and properly reframed.

5. EVIDENCE (§ 472) — OPINION EVIDENCE — HYPOTHETICAL QUESTION — CONCLUSION INVADING PROVINCE OF JURY.

In a brakeman's action for injuries in the derailment of his engine, a hypothetical question whether it was the opinion of the witness that the condition he found plaintiff in was or could be produced by being thrown against the floor and sides of the cab, to which witness replied that in his opinion the injury was the sole cause of plaintiff's condition then, was improper, since it asked an opinion upon the ultimate fact to be found by the jury.

6. MASTER AND SERVANT (§ 278) — ACTION FOR INJURIES — SUFFICIENCY OF EVIDENCE — NEGLIGENCE.

Evidence, in a brakeman's action for injuries from the derailment of his engine, held sufficient to show negligence in failing to provide splashers and side bearings for the tank or tender.

7. MASTER AND SERVANT (§ 129) — INJURY TO SERVANT — "PROXIMATE CAUSE" — RAILROAD CARS AND TRACKS.

The mere proof of a railroad's negligence in failing to provide splashers and side bearings for its tank or tender would not entitle the plaintiff, a pilot, injured by its derailment, to recover, unless it appeared with reasonable certainty that their absence was the proximate cause of the derailment; "proximate cause" being one which by a natural and unbroken series of events produces the injury complained of, one without which it would not have occurred.

For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]

8. MASTER AND SERVANT (§ 265) — ACTION FOR INJURIES — BURDEN OF PROOF — PROXIMATE CAUSE.

In a brakeman's action for injuries from the derailment of his engine, the burden of showing that if the splashers and side bearings, which defendant negligently failed to furnish, had been in use, the derailment would not have occurred, was upon him.

9. EVIDENCE (§ 314) — HEARSAY — OPINIONS ATTRIBUTED TO OTHERS BY EVIDENCE.

In a brakeman's action for injuries in the derailment of his engine, opinions attributed by a witness to the engineer and the fireman, neither of whom was asked to testify as an expert on such point, were incompetent as hearsay opinions.

10. APPEAL AND ERROR (§ 204) — NECESSITY OF OBJECTION — ADMISSION OF EVIDENCE.

The admission of incompetent evidence, which is not objected to, is not reversible error.

11. MASTER AND SERVANT (§ 112) — MASTER'S LIABILITY — MACHINERY AND PLACES FOR WORK — ROUGH TRACKS.

Rough tracks, soft tracks, and unballasted tracks are not per se dangerous.

12. MASTER AND SERVANT (§ 276) — ACTION FOR INJURIES — SUFFICIENCY OF EVIDENCE — PROXIMATE CAUSE OF INJURY.

In a brakeman's action for injuries from the derailment of his engine, evidence held insufficient to support a finding that the derailment was caused by the alleged negligent condition of the tender and the track.

Brown and Bond, JJ., dissenting.

In Banc. Error to Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Charles Kane against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant brings error Reversed and remanded.

Charles Kane, a brakeman in the employment of the defendant railway company brought suit against that company for damages for personal injuries which he claimed to have received on the 14th day of October, 1902, while in the employment of the defendant and engaged in his duty upon a certain engine in charge of the servants of the defendant. He alleges that said engine was suddenly derailed, and that he was hurled from his place on said engine, and against the floor and sides of the cab and boilerhead of said engine, and thereby permanently crippled and injured.

In his second amended petition he makes the following assignments of negligence: "(1) The track where said derailment occurred, and adjacent thereto, was negligently and carelessly permitted and allowed by the defendant to become and remain in an unsafe and defective condition, in that said track was rough and uneven, and caused engine, tender, and cars passing over same to roll and swing, thereby becoming derailed and wrecked. (2) The defendant negligently and carelessly allowed and permitted said track, at and near the place at which said derailment occurred, to become and remain in an unsafe, dangerous, and defective condition, in that said track was rough and uneven, and the ties which supported the rails thereof were old, decayed, defective, and weak, and the dirt under said track was soft and loose. (3) The defendant carelessly and negligently allowed and permitted the tender of said engine, upon which plaintiff was running as aforesaid, to be and remain in a defective, dangerous, and unsafe condition, in this that there were no side bearings on the front trucks of the tender of said engine, and no splashers in the tank of said tender to prevent the water in said tank from being thrown from side to side, and thus causing said tender to rock and sway. (4) The defendant, its agents, servants, and employés, carelessly and negligently ordered, directed, and permitted said engine and said tender, in said dangerous, unsafe, and defective condition, to be run backwards, unattached to any car or other engine, over said dangerous, unsafe, and defective track. (5) The defendant, its agents, servants and employés, negligently and carelessly caused and permitted said engine and tender to be run over said track at a dangerous, unsafe, and reckless rate of speed, to wit, 20 to 25 miles an hour." The petition further charges "that all of said dangerous, unsafe, and defective conditions of said engine, tender, and track and roadbed were known to the defendant, or by the exercise of reasonable care and diligence might have been known." The petition then describes in detail the injuries, which were very serious and permanent in character.

The cause was tried in December, 1906, in the circuit court of Jackson county, and resulted in a verdict in favor of plaintiff for $30,000.

The testimony shows that plaintiff, at the time of the accident, was acting as pilot upon engine No. 1107 from Council Grove to Osage City, that is, he was taking the place of a conductor; that the engine was engaged in helping to move freight trains; that the engine at the time was running "light," without any cars, and, furthermore, was running backward with the tender in front. Plaintiff, it appears, was sitting on a seat in the engine cab, when the engine suddenly left the track, causing plaintiff to be thrown on his back on the floor of the engine, which ran a short distance on the ties before it stopped. Plaintiff immediately took a red lamp, got off the engine, and started back to flag a following freight train. He testified that just as he started he felt a pain in his back, and that he complained of it when he met the train which he went back to flag. At the time he did not think he was seriously injured. As a matter of fact, he continued to work for the railroad, off and on, from the 14th day of October until about the 20th day of November, when he went to a hospital, and continued to grow worse until he became completely disabled, and was reduced to a most deplorable condition.

The evidence tended to show that there were no splashers lengthwise in the water tank, but that there were splashers crosswise. It is clear that the forward trucks of the tender had no side bearings, and it also appeared in evidence that the engine was derailed upon a curve. One witness for plaintiff testified that the track at that point was rough; another, that it was a "soft track." There was some testimony on behalf of the plaintiff that the roadbed at that point was not ballasted and that the ground was soft. The testimony for the defendant, on the contrary, showed that the road was well ballasted and in good condition.

Plaintiff offered evidence tending to show that up to the time of the accident he was in good health and free from any physical ailment. The defendant offered evidence tending to show that, prior to the accident, plaintiff was suffering from a chronic syphlitic complaint, and offered much expert testimony to support the theory that his condition was the result of that old trouble, and not the result of the accident. The experts for the plaintiff, on the contrary, gave testimony tending to show that his condition resulted from the accident.

At the close of plaintiff's evidence the defendant interposed a demurrer to the same, which was overruled. No complaint is made of the instructions...