Kenyon v. St. Joseph Railway, Light, Heat & Power Co.
| Decision Date | 06 June 1927 |
| Citation | 298 S.W. 246,221 Mo.App. 1014 |
| Parties | CECIL KENYON, RESPONDENT, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.
Judgment affirmed.
Duvall & Body and Miles Elliott for respondent.
Charles H. Mayer for appellant.
Trimble, P. J., absent.
This appeal is from a judgment of $ 2000 recovered by plaintiff as damages for alleged personal injuries.
Defendant owns and operates a street railway in the city of St. Joseph, Missouri. Third street in said city runs north and south and is intersected by Michel street running east and west. Street car tracks of defendant are laid in Third street. At the intersection of these streets, a set of car tracks branch off from the track on Third street and run west on Michel street. Cars running north on Third street may be turned west on Michel street by means of a switch located a short distance south of Michel street. On August 5, 1925, plaintiff was in the employ of defendant as a street car conductor, and on this date was engaged in the performance of his duties as such conductor on a trailer passenger car which was attached to and drawn by an electrically propelled street car northward on Third street.
When these cars reached the switch in question, the front or motor car passed over the switch and on northward on Third street, but the trailer car took the curve and ran northwest on the curve into Michel street. The motor car jerked the trailer crosswise of the street. The jerking of the car threw plaintiff against the corner of a seat and onto the floor of the car. He got up and another lurch of the car threw him against the fare box.
Plaintiff testified that the front car was in charge of another conductor; that the motorman in charge of the operation of both cars was in the front or motor car; that he (plaintiff) had nothing to do with the running of the car or the operating or controlling of it. He also testified that if the cars and switch had been in good condition and the cars operated at a reasonable rate of speed, the trailer would not have been derailed.
Plaintiff's evidence tends to show that he was seriously injured and was in a hospital under a doctor's care for some time thereafter. As no complaint is made as to the extent of plaintiff's injuries or the amount of damages awarded, it is unnecessary to burden this opinion with a statement of the facts in relation thereto.
Defendant's witnesses testified that the switch was examined twice on the day of and shortly after the accident and again on October 15, 1925, and each time found to be in good condition; that the switch, switch point and switch tongue were of standard make, were approved by the American Railway Association, and were of the kind in general use by all street railways; that although the car wheels and switch be in perfect condition, the vibration of a street car on either track, will sometimes jar the track and cause a movement of the switch point; that the wheels of the trailer in question were examined and found to be in perfect condition.
Defendant also introduced evidence tending to show that the cars went over the switch at about four miles per hour; that the trailer car moved six or eight feet after leaving the Third street track; that the coupling between the cars was not broken and the trailer car was immediately backed onto the track; that the plaintiff at the time of the derailment was standing up in the trailer car and was not thrown down or injured.
Defendant's witness, Feilder, testified he was employed by defendant, his duties being to look after the switches on defendant's track; that he examined these switches twice each day; that no work had been done on the switch in question since the date of the accident except clean the dirt out of it; that the switch was in the same condition on the date of the trial that it was on the date of the accident; that there had not to his knowledge been a derailment at this switch since the date of plaintiff's injury; that he did not think there could be a derailment at this switch without him knowing it, because the wheels of the derailed car would cut the pavement or asphalt so you could see it.
Plaintiff called witness in rebuttal who testified that they saw other derailments at this switch shortly after plaintiff's injury and saw men working on the switch.
The petition pleads general negligence, and plaintiff seeks to invoke the doctrine of res ipsa loquitur. The charging part of the petition is as follows:
"That on the 5th day of August, 1925, plaintiff was in the employ of defendant company as a conductor on its street cars, and whilst in the performance of his duties as conductor for said company on that day, and whilst riding upon a trailer attached to a motor car, running along and over defendant's said Union line, and whilst in the discharge of his duties as conductor of said trailer car of defendant, said car upon which plaintiff was conductor aforesaid, was, by reason of the negligence of defendant, and without fault or negligence on his part, derailed and caused and permitted to leave the track, by reason and as a direct result whereof plaintiff was hurled, jerked and thrown against the parts of said car, and then and thereby seriously, painfully and permanently injured as follows:"
The answer was a general denial.
Plaintiff's instruction No. 1, on which the case was submitted to the jury, reads as follows:
"The court instructs the jury that if you believe and find from the preponderance of the evidence that on the occasion in question plaintiff was in the employ of defendant and in the performance of his duties for defendant as a conductor on its street car and that said street car was derailed and caused to leave the track and that plaintiff was injured thereby, you must find for the plaintiff and return a verdict in his favor unless you further believe and find from the evidence that defendant could not by the exercise of ordinary care on its part have prevented the derailment of said street car."
Plaintiff plants himself squarely on the doctrine of res ipsa loquitur. If the pleading and proof does not bring the case within this doctrine, the judgment cannot be upheld.
Some cases in Missouri, make the statement, without qualification, that the doctrine of res ipsa loquitur has no application to a master and servant case. Other Missouri cases hold the contrary doctrine. It is now well settled that the doctrine does apply to master and servant in a case where the facts warrant its application. [Gilbert v. Railroad, 148 Mo.App. 475, 485; Klebe v. Distilling Company, 207 Mo. 480, 491, 105 S.W. 1057; Sabol v. St. Louis Cooperage Co., 282 S.W. 425, 430, 431.]
Appellant takes the position that the doctrine of res ipsa loquitur never applies in a master and servant case except in cases where the servant's injury is caused by the action of some intricate machinery or instrumentality under the exclusive control and direction of the master, and where the servant has no knowledge of the intricate mechanism of such instrumentality and no means or opportunity of acquiring such knowledge. Appellant also contends that in order to state a cause of action under the res ipsa loquilur doctrine in a master and servant case, the petition must allege in connection with the happening of the occurrence which caused the injury, a state of facts bringing the case within the rule stated.
Based on this contention, appellant earnestly insists that the petition in the case at bar wholly fails to state a cause of action in that it fails to allege a state of facts showing that plaintiff's injury was caused by the action of some intricate instrumentality under the control and direction of defendant and that plaintiff had no knowledge of the condition or manner of operating such instrumentality and had no means of acquiring such knowledge.
We are not impressed with this contention. The sufficiency of the petition was not challenged in the trial court. The point cannot be made here for the first time unless the petition wholly fails to state a cause of action. Where, as here, a petition alleges general negligence, it states a cause of action and specific acts of negligence are admissible under such a petition. [Price v. Metropolitan Ry. Co., 220 Mo. 435, 119 S.W. 932; Loftis v. The Street Railway Co., 220 Mo. 470, 119 S.W. 942; Wolven v. Traction Co., 143 Mo.App. 643, 648, 128 S.W. 512.]
Whether or not the plaintiff made a case on the proof, is a different question. This we take next. We approach the discussion of this point in the light of the fact that there is no presumption of negligence in favor of the plaintiff as in cases of passengers against carriers. In passenger cases proof of the occurrence may or may not show negligence. If such proof does not show negligence, then the presumption of negligence comes to the aid of the passenger. Not so in master and servant cases. In such cases if the occurrence does not carry the imputation of negligence on its face, unaided by a presumption of negligence, no case is made. The law governing this class of cases is clearly stated by this court, speaking through ELLISON, J., in Hamilton v. Railroad, 123 Mo.App. 619, 623, as follows:
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