Kersey v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 October 1883
• Citation: 79 Mo. 362
• Parties: KERSEY, Appellant, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY.
• Court: Missouri Supreme Court

79 Mo. 362

KERSEY, Appellant,

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Holt Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

A. H. Vories and James W. Boyd for appellant.

Strong & Mosman for respondent.

HOUGH, C. J.

This is an action to recover damages for injuries sustained by the plaintiff while in the service of defendant as brakeman on a train propelled by a locomotive which was at the time of the injury with the knowledge and consent of the defendant in charge of a fireman, who it is alleged the defendant knew was incompetent and unfit to manage a locomotive. The circuit court directed a non-suit, and the plaintiff has appealed.

The petition is as follows: “That the defendant is and for more than four years last past has been a railroad corporation, duly incorporated raider and by virtue of the laws of Missouri; that as such corporation defendant owns and operates and during the time aforesaid has owned and operated its railroad from Kansas City to Council Bluffs and through the station called Bolckow, in Andrew county; that the defendant operates its said railroad by its agents, servants and employes; that about the month of July, 1874, plaintiff was employed by defendant as a brakeman on defendant's said railroad, and in and about the coupling of defendant's cars; that while so employed, and while he was in the discharge of his duty as such brakeman on and about defendant's freight cars at said station, about the 28th day of December, 1874, plaintiff was, by the mismanagement, carelessness and negligence of defendant, caught between two of defendant's said cars and greatly injured, hurt and wounded, and plaintiff's right hand was then and there greatly mashed, broken, bruised, hurt and injured; that in consequence of said injuries received as aforesaid, plaintiff was compelled to have his fore finger amputated, and his middle finger was and is stiff and useless; that in consequence of said injuries plaintiff suffered great bodily pain for four months, during which time he was unable to attend to any business, and suffered great pain and anguish of mind, by reason of all which plaintiff is damaged in the sum of $5,000.

Plaintiff further states that the injuries received resulted to plaintiff by reason of the mismanagement, carelessness and negligence of the defendant in this: that at the time plaintiff was mashed, hurt and injured as aforesaid by defendant's said train of cars, there was no engineer in charge of or running the locomotive engine which propelled said train of cars, and said locomotive engine was then and there,...