Lessenden v. Missouri Pacific Railway Company

• Decision Date: 16 December 1911
• Citation: Lessenden v. Missouri Pacific Railway Company, 142 S.W. 332, 238 Mo. 247 (Mo. 1911)
• Parties: ALONZO C. LESSENDEN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

142 S.W. 332

238 Mo. 247

ALONZO C. LESSENDEN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

December 16, 1911

Appeal from Jackson Circuit Court.-- Hon. James E. Goodrich, Judge.

Affirmed (conditionally).

Martin L. Clardy, Edw. J. White and Elijah Robinson for appellant.

(1)Plaintiff had no right to maintain this suit in the circuit court of Jackson county, Missouri.Under the laws of the State of Kansas suit was required to be brought either in the county where the accident occurred or in the county in which the defendant had its principal office and place of business.The accident did not occur in Jackson county, Missouri, nor did defendant have its principal office and place of business in said county.Sec. 2, chap. 379, p. 582, Laws of Kansas 1903.The plaintiff, a resident of Kansas, where the accident occurred, could have sued the defendant, which is also a resident of Kansas, in the courts of that State; and his coming to Jackson county, Missouri, and instituting suit here was a fraud upon the law which ought not to be tolerated by the courts.(2) Under the statutes of Kansas the plaintiff could not maintain this suit without having served notice on the defendant within a certain time, and no such notice was served.Sec. 6312,Statutes of Kansas 1905.(3) Under the undisputed evidence plaintiff was not entitled to recover and the court should have directed a verdict for the defendant.Plaintiff's theory of the case is disproved by the conceded physical facts; and the verdict is contrary to reason and ought not to be permitted to stand.Hayden v Railroad,124 Mo. 566;Kelsey v. Railroad,129 Mo. 362;Nugent v. Milling Co.,131 Mo. 258;Lane v. Railroad,132 Mo. 4;Huggart v Railroad,134 Mo. 680;Payne v. Railroad,136 Mo. 583;Oglesby v. Railroad,150 Mo. 188;Hook v. Railroad,162 Mo. 598;Petty v. Railroad,179 Mo. 687;O'Keef v. Railroad,81 Mo.App. 386;Covell v. Railroad,82 Mo.App. 180;Spohn v. Railroad,87 Mo. 74;State v. Fannon,158 Mo. 149;Spiro v. Railroad,102 Mo.App. 250.This verdict is against every reasonable probability that might result from the evidence, and the inevitable conclusion must be that it was the result of partiality or prejudice on the part of the jurors, and a judgment based on such a verdict should be reversed.Jeans v. Morrison,99 Mo.App. 208;Gage v. Trawick,94 Mo.App. 307;Cook v. Railroad,94 Mo.App. 417;Baker v. Stonebraker,36 Mo. 345;Price v. Evans,49 Mo. 396;Bautrain v. Railroad,78 Mo. 44;Rosecrans v. Railroad,83 Mo. 678;Spohn v. Railroad,87 Mo. 74;Cannon v. Moore,17 Mo.App. 92;Whitsett v. Ransom,79 Mo. 258;Freiz v. Fallon,24 Mo.App. 439;Empey v. Railroad,45 Mo.App. 422;Walton v. Railroad,49 Mo.App. 620;Glick v. Railroad,57 Mo.App. 97.(4)The court committed error in permitting plaintiff to introduce in evidence the petition in a former suit.It was not admissible from any standpoint; and it was liable to influence the jury, because it contained statements as to how the accident occurred.(5)Plaintiff was guilty of negligence, which directly contributed to the accident, and therefore was not entitled to recover.If he had used the pinch-bar which was provided for doing the kind of work in which he was engaged, the accident would not have occurred; but he deliberately used a bar that was not adapted to that kind of work.As shown by the testimony of Dr. Craig, he recklessly got in front of the moving car, which position he, as an experienced railroad man, must have known was dangerous.(6) The damages assessed by the jury were excessive and showed partiality or prejudice on their part.Spohn v. Railroad,87 Mo. 84;Adams v. Railroad,100 Mo. 555;Ice Co. v. Tamm,90 Mo.App. 202;Chlander v. Transit Co.,112 S.W. 253;Whalen v. Railroad,60 Mo. 323;Nichols v. Glass Co.,126 Mo. 55;Furnish v. Railroad,102 Mo. 438;Chitty v. Railroad,166 Mo. 435.(7)The court committed error in giving plaintiff's instruction number 3.Said instruction amounted practically to a statement that a verdict for any sum up to $ 25,000, would be satisfactory to the court.Bryan v. Acee,27 Ga. 87;Gilbertson v. Railroad,43 N.Y.S. 732;Railroad v. Austin,69 Ill. 428;Fordyce v. Nix,23 S.W. 969; Oglesby v. Railroad, unpublished opinion.

Guthrie, Gamble & Street, Boyle & Howell and A. F. Smith for respondent.

(1) The brief of defendant does not raise any question as to the negligence of the defendant.The undenied act of Colyer in pulling out the bar while the foreman was after the blocks at a time when the men had been ordered to hold the tank until the blocks were procured, was the grossest negligence.The fact that Colyer was a green man and had never been instructed by the defendant does not exculpate the defendant.(2) The statement of facts is a sufficient answer to the charge of contributory negligence.Under them, the issue, if there was any, was for the jury.(3) The right to sue in Jackson county, Missouri, was before the Supreme Court of this State in Newlin v. Railroad Co., hereinafter cited, in which case we filed a brief amici curiae, on account of the different cases in which we were interested in which the question was involved.This same defendant has raised the same question twice in the Kansas City Court of Appeals.The question has also been decided by the Supreme Court of the United States.In each of the cases the decision was adverse to defendant's contention.Newlin v. Railroad,222 Mo. 375;Husted v. Railroad,143 Mo.App. 627;Philes v. Railroad,141 Mo.App. 561;Railroad v. Sowers,213 U.S. 55.Courts differ as to whether or not actions of this kind are transitory.But the legislatively declared policy of this State is to throw its courts open to suitors in cases of this character.Laws 1891, p. 61;R. S. 1899, sec. 547;Laws 1905, p. 95.These statutes are intended to cover the case where a transitory action of this character requires special legislation to support it; but they are declaratory of the Missouri policy, the Legislature assuming that no legislation was necessary to support actions in our courts in cases of this character, except where it was necessary to qualify and confer authority upon the special plaintiff.The Legislature rightfully so assumed.Burdict v. Railroad,123 Mo. 229;Charlton v. Railroad,200 Mo. 431.The courts of Kansas recognize the transitory character of all causes of action not specifically localized and not incapable of enforcement in other jurisdictions whether such causes of action arise from contract or in tort, and whether, if they arise in tort, they arise from common law negligence or breach of statute.Railroad v. Kannalley,39 Kan. 1;Matheson v. Railroad, 61 Kan. 667.

VALLIANT, C. J. Lamm, Ferriss, Kennish, and Brown, JJ., concur; Woodson and Graves, JJ., dissent.

OPINION

In Banc

VALLIANT C. J. --

Plaintiff recovered a judgment in the circuit court of Jackson county against defendant for $ 25,000, as for personal injuries alleged to have been suffered by him through the negligence of a fellow-servant.From that judgment the defendant prosecutes this appeal.

The accident occurred at Osawatomie in Miami county, Kansas, where the plaintiff resided and through which the defendant's railroad runs.

The action is founded on a statute of Kansas making a railroad company liable for injuries inflicted on an employee through the negligence of a fellow servant.The following statement we take from appellant's brief:

"At the time of the accident in question plaintiff was employed by the defendant in what is known as the tank shop at Osawatomie, Kansas, and had worked for the company eleven years, seven years of which time he had worked with the tank crew at Osawatomie.

"The accident occurred about 9:15 a. m. at the defendant's roundhouse at Osawatomie.The plaintiff claimed that he, together with three other men, were instructed by the foreman to move a tank from the roundhouse out onto the track, for the purpose of putting a new wheel on it; that the track upon which the tank was standing was down grade from the door of the roundhouse to the turntable, which was about fifty feet distant, and that the fall was about three inches in ten feet; that the tank was coupled to the engine, and, in order to loosen the pin, it became necessary to put bars under the rear wheels of the tank and pinch it up toward the engine; that an employee named Colyer took a pinch-bar and put it under one wheel, and he, plaintiff, took a steel bar and put it under the other wheel, and pinched the tank up about a fourth of an inch so as to loosen the pin, which was then withdrawn, and thereupon the foreman told him and Colyer to hold the tank until he, the foreman, could get some blocks to block it at the point where they wished to put it; that while he was holding his bar, Colyer removed his, thus permitting the tank to run back on the bar that plaintiff was holding and mashed it down to the rail, catching his foot and throwing him down, so as to permit the tank to run over both of his legs; that he was standing on the left hand side of the track facing the tank, with the toe of his right foot on the rail on the left side, and his left foot five or six inches outside of the rail."

Plaintiff's testimony tended to prove as follows:

The usual way to take up the slack for this purpose was to put another engine behind the tank to push it up, but when an engine was not available the work was done by men using bars to "pinch" the tender up.A quarter of an inch was sufficient to pinch the tender to loosen the pin.

When the tender was pinched up enough, wooden blocks were to be put under or against the wheels to hold it in place or keep it from running back until they could pull the pin, then the...