Kane v. Missouri Pacific Railway Company

• Decision Date: 02 June 1913
• Citation: 157 S.W. 644,251 Mo. 13
• Parties: CHARLES KANE v. MISSOURI PACIFIC RAILWAY COMPANY, Plaintiff in Error
• Court: Missouri Supreme Court

157 S.W. 644

251 Mo. 13

CHARLES KANE v. MISSOURI PACIFIC RAILWAY COMPANY, Plaintiff in Error

Supreme Court of Missouri

June 2, 1913

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Martin L. Clardy and Edw. J. White for plaintiff in error; Elijah Robinson, of counsel.

(1) There was no substantial evidence tending to show any negligence on the part of the defendant resulting in the accident in question; nor was there any substantial evidence tending to show that plaintiff received any injury in that accident. Spohn v. Railroad, 87 Mo. 84; Spiro v Transit Co., 102 Mo.App. 250. (2) It devolved upon the plaintiff to prove that the injury resulted from a cause which would render the defendant liable, and in leaving it to conjetcure as to what caused the derailment of the engine tank, he failed to establish a cause of action. Knorpp v Wagner, 195 Mo. 663; Hill v. Drug Co., 140 Mo 440; Smith v. Box Co., 193 Mo. 739; Beebe v. Transit Co., 206 Mo. 419; Morgan v. Mining Co., 136 Mo.App. 241; Caudel v. Kirkbride, 117 Mo.App. 417; Thornburg v. Mining Co., 126 Mo.App. 660. (3) The fact that there were no side bearings on the front of the tank did not constitute negligence on the part of the defendant. State v. Edwards, 203 Mo. 539. (4) Plaintiff's instruction allowed the jury to find for the plaintiff on either of two hypotheses; one of which was not supported by the evidence. There was no evidence that the rough, uneven condition of the track caused the derailment, or the absence of the side bearings on the front truck or the absence of splashers. All that the evidence on any of these allegations showed was that they might or could cause a derailment. The plaintiff, himself, alleged in his petition that the derailment was caused by running the engine backward and by excessive speed, and the jury could as well have found that these conditions actually caused the derailment. The giving of this instruction was clearly error because it enabled the jury to base a verdict wholly upon conjecture. Wojtylak v. Coal Co., 188 Mo. 284; Knorpp v. Wagner, 195 Mo. 638; Beebe v. Transit Co., 206 Mo. 419. (5) The verdict in this case was grossly excessive and for that reason the judgment ought to be reversed. Spohn v. Railroad, 87 Mo. 84; Adams v. Railroad Co., 100 Mo. 555; Chandler v. Transit Co., 213 Mo. 244; Chitty v. Railroad, 166 Mo. 435; Partello v. Railroad, 217 Mo. 645, 240 Mo. 143; Lessenden v. Railroad, 238 Mo. 247.

Frank P. Walsh and E. R. Morrison for defendant in error.

(1) There is nothing for consideration here but the record proper. Harrison v. Bartlett, 51 Mo. 170; St. Joseph v. Ensworth, 65 Mo. 628; Railroad v. Cauley, 148 Ill. 490; Mfg. Co. v. Lambertson, 74 Kan. 304; Walter v. Walter, 117 Ind. 247; Fales v. Fales, 29 R. I. 303. (2) Defendant was negligent in failing to equip the tender with splashers. Jones v. Railroad, 178 Mo. 528; Smith v. Fordyce, 190 Mo. 1; Charlton v. Railroad, 200 Mo. 413; Huhn v. Railroad, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 364; Curtis v. McNair, 173 Mo. 170; Doyle v. Trust Co., 140 Mo. 1; Bender v. Railroad, 137 Mo. 240. (3) Defendant was negligent in failing to provide the front trucks with side bearings. See cases cited under preceding point. (4) The track at the point of the wreck was defective. (5) If plaintiff in his instructions assumed an unnecessary burden, it is not reversible error. Prewitt v. Railroad, 134 Mo. 615; Harrington v. Sedalia, 98 Mo. 585; Blankinship v. Paint & Glass Co., 135 S.W. 970; Jackson v. Insurance Co., 27 Mo.App. 62; Brooks v. Railroad, 35 Mo.App. 571; O'Neill v. Blase, 94 Mo.App. 648; York v. Bank, 105 Mo.App. 127. (6) The cause of plaintiff's condition was for the jury. MacDonald v. Railroad, 219 Mo. 468; Sharp v. Railroad, 213 Mo. 531; Fetter v. Fidelity & Cas. Co., 174 Mo. 256. (7) The verdict was not excessive. Gordon v. Railroad, 222 Mo. 516; Markey v. Railroad, 185 Mo. 365; Waldheir v. Railroad, 87 Mo. 37; Huggard v. Refining Co., 132 Iowa 724; Railroad v. Kelly, 80 S.W. 1073; Harrold v. Railroad, 24 Hun, 184; Smith v. Whittier, 95 Cal. 279; Railroad v. Shelton, 69 S.W. 653; Railroad v. Barton, 130 Ill.App. 573; Railroad v. Friedman, 41 Ill.App. 270; Railroad v. Dalton, 120 S.W. 240; Shaw v. Railroad, 8 Gray, 45; Snell v. Oil Co., 106 S.W. 170; Railroad v. Wallace, 45 So. 857; Whitehead v. Railroad, 114 N.W. 254; Retan v. Railroad, 94 Mich. 146; Hall v. Railroad, 46 Minn. 439.

FERRISS, J. Lamm, C. J., Graves, Walker and Faris, JJ., concur; Woodson, J., concurs in all but the order remanding, in a separate opinion; Brown and Bond, JJ., dissent, and vote for affirmance in a small sum, in a separate opinion by Brown, J.

OPINION

In Banc.

FERRISS J.

-- 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 fourteenth 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 support 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 employees, 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 employees, 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, twenty to twenty-five 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 syphilitic complaint, and offered much expert testimony to support the...