Lock v. Chicago, Burlington And Quincy Railroad Company
| Decision Date | 15 March 1920 |
| Citation | 219 S.W. 919,281 Mo. 532 |
| Parties | FRED K. LOCK v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court. -- Hon. Fred Lamb, Judge.
Affirmed.
H. J Nelson, Bailey & Hart, Palmer Trimble and M. G. Roberts for appellant.
(1) The instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case and again at the close of all the evidence, should have been given. (a) In actions under the Federal Employers' Liability Act negligence is essential to a recovery and it is an affirmative fact, which must be established by competent evidence. The statute prescribes that the "defect or insufficiency" in the "track" or "roadbed" causing the injury must be "due to negligence." Seaboard A. L. R. Co. v. Horton, 233 U.S. 492; Fish v. Railroad Co., 263 Mo. 106; Erie R. Co. v. Winfield, 244 U.S. 172; New York C. R. Co. v. Winfield, 244 U.S. 150; New Orleans Railroad Co. v. Harris, 38 S.Ct. 535. (b) Prior knowledge on the part of the employer of the existence of a negligent defect must be shown. Proof of an injury and an obstruction on the master's premises, i. e., that the defect existed at the time of the injury, is not sufficient to show prior knowledge, actual or constructive; for the fact of an accident carries with it no presumption of negligence on the part of the employer. On the contrary, in the absence of affirmative proof showing prior knowledge of the defect the injury is to be attributed to causes for which the master is not liable. Haggard v. McGrew Coal Co., 200 S.W 1072; Elliott v. Railroad, 204 Mo. 14; Winslow v. M., K. & T., 192 S.W. 121; Railroad v. Ingram, 187 S.W. 452, affirmed in 244 U.S. 648; Gurley v. Railroad, 104 Mo. 211; Yarnell v. Railroad, 113 Mo. 570; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Patton v. Railroad, 179 U.S. 658. (c) Proof that a negligent obstruction was upon the master's premises at the time of the injury, does not establish prior knowledge, actual or constructive, on the part of the master even though the injury occurred on the private premises used exclusively by his employees, for knowledge will not be presumed even under such circumstances, as it is an independent element of liability which must be alleged and proved. M., K. & T. v. Jones, 103 Tex. 187, 125 S.W. 309; Ft. Worth Ry. Co. v. Jones, 166 S.W. 1130; Ry. Co. v. Jones, 182 S.W. (Tex. Civ. App.) 1184; Welch v. Railroad, 17 N.Y.S. 342; Haggard v. McGrew Coal Co., 200 S.W. 1072; Barrett v. Virginian Ry. Co., 244 F. 397; Elliott v. Railroad, 204 Mo. 1; Hollenback v. Railroad, 141 Mo. 109. (d) Prior knowledge to any of the employees of the defendant of the existence of the brake-beam is not sufficient. Knowledge of a defect in a railroad yard must be brought home to some agent or employee charged with removing and remedying the defects. (4) Thompson on Negligence, sec. 3797, p. 78; 1 Bailey on Personal Injuries (2 Ed.), sec. 282, p. 588; Covey v. Railroad Co., 86 Mo. 641; Porter v. Railroad Co., 71 Mo. 78; Johnson v. Railroad, 96 Mo. 340; Dedrick v. Railroad, 21 Mo.App. 433. And the enactment of a statute prescribing that an employee does not assume the risk of the negligence of a fellow servant, does not alter the rule or repeal this principle. See Mr. LaBatt's comprehensive note in 41 L. R. A. 1, and particularly on p. 143 thereon. (e) The preponderance of the evidence in this case against the plaintiff's uncorroborated statement that there was a brake beam near the 21 lead, is so strong as to compel the presumption that the jury was actuated by prejudice, bias or sympathy. Under such circumstances this court will not hesitate to set aside the verdict of the jury. Lehnick v. Met. St. Ry. Co., 118 Mo.App. 611; Gage v. Trawick, 94 Mo.App. 307; Friesz v. Fallon, 24 Mo.App. 439; Holt v. Morton, 53 Mo.App. 187; Hewitt v. Doherty, 25 Mo.App. 326; Lionberger v. Pohlman, 16 Mo.App. 392; Walton v. Ry. Co., 49 Mo.App. 620; Empey v. Grand Ave. Cable Co., 45 Mo.App. 422. (2) Instruction No. 6 on the measure of damages is erroneous for the reason that it does not conform to the present value theory adopted by the Federal Supreme Court. Railroad v. Kelly, 241 U.S. 485.
A. G. Knight for respondent.
(1) By Section 1 of the Federal Employers' Liability Act (U. S. Comp. Stat. 1901, Supp. 1911, p. 1322) every railroad company is made liable for the negligence of any of its officers, agents or employees and their negligence is the company's negligence, and their act in leaving the brake-beam at the point where it was shown to be left was a negligent act the moment they did so, binding the company as effectually as if the company itself had left the brake-beam there, and the plaintiff was not bound to assume a further burden not embodied in the statute or required by its terms, i. e. to show a negligent remaining of the brake-beam at the point where left. Hawkins v. Railroad Co., 189 Mo.App. 224; Cross v. Railroad Co., 191 Mo.App. 202; Laughlin v. Ry. Co., 205 S.W. 3. (a) The direct and circumstantial evidence was ample to support the finding of the jury that an employee of the company left the brake-beam at the point of injury. (b) The advancing legislation of recent years, extending the liabilities of the master for injuries to the servant, not only of this and other states, but of the Congress, and especially the act upon which this suit is founded, abolishing the fellow-servant rule, denying the defense of contributory negligence and modifying the doctrine of assumption of risk, has practically swept away all the objections to the doctrine as a distinctive rule of evidence of res ipsa loquitur, as applicable to master and servant. Most of the objections to the applicability of this rule to that situation have now no predicate on which to rest, and with the breaking down of these barriers, the rule must unfold with the spirit of the law. While we think the facts and circumstances are ample and abundant to impel the inference of defendant's negligence in this case, yet if they are lacking in the least degree in force or probativeness, this rule of evidence will at least lend aid to the conclusion of negligence, and it may be would entirely support it if necessity required. Jones v. Ry. Co., 178 Mo. 528; Turner v. Harr, 114 Mo. 335; Blanton v. Dold, 109 Mo. 64; Sackewitz v. Am. Biscuit Mfg. Co., 78 Mo.App. 144; Johnson v. Met. St. Ry. Co., 104 Mo.App. 588; Klebe v. Parker Distilling Co., 207 Mo. 480; Benedict v. Ry. Co., 104 Mo.App. 218; Mo. Pac. Ry. Co. v. Larussi, 161 F. 70; Wanen v. Mo. & Kans. Tel. Co., 196 Mo.App. 553; Myers v. City of Independence, 189 S.W. 821; Orris v. Railway Co., 214 S.W. 127; 4 Wigmore, Ev. p. 3557; Wiles v. Railroad Co., 125 Minn. 348, 147 N.W. 427; Graham v. Badger, 164 Mass. 42; Lykiardopoulo v. New Orleans C. R. L. & P. Co., 127 La. 310, 53 So. 575, Ann. Cas. 1912A, p. 976; Trim v. Ship Bldg. Co., 211 Mass. 592: Nolen v. Engstrum Co., 166 P. 346; Duhme v. Hamburg-American Packet Co., 184 N.Y. 404, 112 Am. St. 615; Removich v. Const. Co., 264 Mo. 43, L. R. A. 1917E, p. 233; Note L. R. A. 1917E, pp. 4 to 126.
OPINION
In Banc
This is an action predicated on the Federal Employers' Liability Act, for personal injuries. It was brought by the respondent against the appellant in the Circuit Court of Linn County, where it was tried in March, 1916, resulting in a verdict in favor of the respondent in the sum of $ 10,000. A review of the judgment rendered thereon is sought by the appellant.
Appellant maintains, at Hannibal, a terminal yard, which has thereon various buildings, a main, transfer and switching tracks necessary in the operation of its business as a railway company. Respondent at the time of his injury was employed in this yard as a switchtender, his hours of labor being from seven p. m. to seven a. m. His duties required him to open and throw switches and align them for the passage of trains. In so doing, it became necessary for him at times to pass over the tracks, switches and rails in the yard. He had been thus employed by the appellant for twenty-six days prior to his injury, which occurred December 11, 1915, at about four o'clock in the morning. The weather, at the time was dark and rainy. Just prior to his injury, respondent had aligned a switch for a train which was to pass through the yard en route to St. Louis. Immediately thereafter he started to walk toward and across the main lead, giving signals as he went with his lantern, to the train for which he had aligned the switch, to proceed. By the "main lead" is meant a main track which ran diagonally across the yard from which other tracks radiated to switch and repair parts of the yard. One of these tracks was known as lead to switching tracks No. 21 to No. 25, and is designated in this record as "21 lead." After giving the signals, and while respondent was in the space between the main lead and 21 lead on his way to a shanty in the yards, where he stayed when not engaged in the discharge of his duties, and while looking ahead to determine his course, and to see if the train for which he had aligned the switch was approaching, he stumbled over a brake-beam lying between the main track and 21 lead, and fell to the ground. In falling, he struck on his side and back, and fell lengthwise of the track. As he attempted to arise, a switch engine approaching on the 21 lead knocked him down again, caught him and dragged him about twenty feet, running over and crushing his right hand and wrist. He also received a disfiguring gash over his right eye. Arising after the switch engine had passed, he saw for the first time the brake-beam over which he had...
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