Madden v. Missouri Pac. Ry. Co.

• Decision Date: 25 November 1912
• Parties: MADDEN v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

151 S.W. 489

167 Mo. A. 143

MADDEN v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

November 25, 1912.

Certified to Supreme Court, November 25, 1912.

1. MASTER AND SERVANT (§ 197) — FELLOW SERVANTS — WHO ARE.

A machinist's helper in railroad shops and a machinist acting as foreman are fellow servants while engaged together in moving a brakebeam from the blacksmith shop to the roundhouse, there to be unloaded and placed under a locomotive.

2. MASTER AND SERVANT (§ 180) — FELLOW SERVANTS — LIABILITY OF MASTER.

The common-law rule that the negligence of a servant causing injury to a fellow servant may not be imputed to the master, and the risk of such injury is assumed by the injured servant, has been abrogated by statute, so far as railroad companies are concerned.

3. MASTER AND SERVANT (§ 180) — INJURY TO SERVANT — NEGLIGENCE OF FELLOW SERVANT — STATUTORY PROVISIONS.

Employés in railroad shops engaged in moving a brakebeam from the blacksmith shop to the roundhouse, to be there unloaded and placed under a locomotive, are within the fellow servant statute of Kansas (Gen. St. Kan. 1909, § 6999), making every railroad company liable for damages to any employé in consequence of the negligence of any other employé.

4. MASTER AND SERVANT (§ 279) — INJURY TO SERVANT — NEGLIGENCE OF FELLOW SERVANT.

In an action for injuries to a servant while assisting a fellow servant in removing a brakebeam from the blacksmith shop in railroad shops to the roundhouse, evidence held to support a finding of negligence of the fellow servant.

5. MASTER AND SERVANT (§ 216) — INJURY TO SERVANT — ASSUMPTION OF RISK.

Under the rule in force in Missouri that a servant does not assume risks created by the master's negligence, or under the rule in Kansas that a servant who, with full knowledge of the danger of the risk, continues in the service assumes the risk, though caused by the master's negligence, an employé in railroad shops assisting a coemployé in moving a brakebeam from the blacksmith shop to the roundhouse does not assume the risk of the coemployés negligence in doing his part of the work.

6. PLEADING (§ 433) — INJURY TO SERVANT — PETITION — SUFFICIENCY.

A petition, in an action for injuries occurring in Kansas to an employé in railroad shops, which alleges that plaintiff was a machinist's helper and worked under a machinist, who was a foreman, and that the injury was caused by his negligence in lifting a brakebeam and suddenly dropping it while plaintiff was in a place of danger, does not state a common-law cause of action, but states a cause of action under the fellow servant act (Rev. St. 1909, § 5434), and under Gen. St. Kan. 1909, § 6999, making every railroad company liable for damages done to any employé by the negligence of any other employé, and supports a recovery as against the objection raised after verdict, based on the failure to plead the statute of Kansas.

7. PLEADING (§ 395) — ISSUES, PROOF, AND VARIANCE.

A plaintiff cannot plead one cause of action and recover on another.

8. EVIDENCE (§ 80) — STATUTES (§ 281) — STATUTES OF SISTER STATES.

One relying on the law of a sister state for his cause of action must allege in his pleading what the statute is, and his failure to do so subjects his petition to attack by demurrer; but where the petition states a good cause of action under the statutory law of Missouri, and defendant, failing to demur, files answer and invites judgment on the facts as pleaded, the presumption will arise that the law of the sister state is similar to the law of Missouri; and the petition, thus aided, is good after verdict.

9. EVIDENCE (§ 80) — LAW OF SISTER STATE — COMMON LAW — PRESUMPTIONS.

The court cannot presume that the common law is in force in Kansas; but, in the absence of any showing to the contrary, it will presume that the statutory law of Kansas is like the statutory law of Missouri.

10. MASTER AND SERVANT (§ 252) — INJURY TO SERVANT — STATUTORY LIABILITY.

An action under Gen. St. Kan. 1909, § 6999, making every railroad company liable for damages to any employé caused by any negligence of other employés, provided notice of the injury has been given, unless an action is commenced within eight months, brought within eight months after the injury complained of, is maintainable without the statutory notice.

11. APPEAL AND ERROR (§ 216) — INSTRUCTIONS — NONDIRECTION.

The defect in an instruction on the measure of damages, arising from the omission to give the legal elements on which the jury must base a verdict, is but a nondirection and not a misdirection; and defendant, failing to request an instruction, on the subject may not complain.

12. DAMAGES (§ 216) — PERSONAL INJURIES — INSTRUCTIONS.

An instruction, in an action for personal injuries, on the measure of damages is not erroneous because it states the maximum damages the jury may assess, if finding a verdict for plaintiff.

13. APPEAL AND ERROR (§ 1003) — VERDICT — CONCLUSIVENESS.

A verdict for a party whose evidence is substantial and presents issues of fact will not be set aside as against the weight of the evidence, though the court, on appeal, believes that it is against the weight of the evidence.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Ralph Morgan Madden against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed, and cause certified to the Supreme Court.

Martin L. Clardy, of St. Louis, and Ed. J. White, of Kansas City, for appellant. Henry J. Latshaw, of Kansas City, for respondent.

JOHNSON, J.

Action by a servant to recover damages for personal injuries he alleges were caused by the negligence of his master. A trial of the issues resulted in a verdict and judgment for plaintiff in the sum of $7,500, and the cause is before us on the appeal of defendant.

The evidence of plaintiff tends to show the following state of facts: Plaintiff was employed in the yards and machine shops of defendant in Kansas City, Kan., as a machinist's helper, and worked under the direction of the machinist. He worked at night, and was injured during the night of January 27, 1910. A heavy metal brakebeam had been taken to the blacksmith shop to be repaired, and after it had been repaired and was still hot it was loaded crosswise on a truck and wheeled by plaintiff from the blacksmith shop into the roundhouse, where it was to be unloaded and placed under a locomotive. The machinist walked beside the truck, and, when it stopped at the place of unloading, directed plaintiff to help unload. The two men stood on opposite sides of the truck, and the order of the machinist contemplated that each should lift an end of the beam, raise the load, and carry it to the place where it was to be deposited. Both men wore heavy gloves, and just before he started to lift his end the machinist took off one of his gloves to enable him to light his pipe. He did not replace his glove, but seized the beam with both hands and raised up his end, when, being burned on the bare hand by the heated metal, he suddenly dropped or threw down the beam end with such force that the truck was swung violently around, and plaintiff, who was stooping and just beginning to lift his end, was struck in the back by the truck and received the injuries of which he complains.

The evidence of defendant contradicts that of plaintiff on all points, and tends to show that plaintiff received no injuries, or, if he did, that they were not received in the manner claimed by him.

The petition alleges, in substance, that the machinist was the foreman of plaintiff, and that the injury was caused by his negligence in lifting the brakebeam and suddenly dropping it while plaintiff was in a place of danger. No reference is made to any statute of Kansas. The petition was not attacked by demurrer. The answer contains a general denial, an allegation that plaintiff and the machinist were fellow servants, and a plea that "a statute known and designated as section 22 of chapter 341 of the Laws of said state of Kansas, was enacted in the year 1905, which section provides that, in case of an injury being sustained by an employé of a railway company, notice in writing that such injury has been sustained, stating the time and place thereof, shall be given by or on behalf of the person injured to such railroad company within eight months after the occurrence of the injury; that the giving of such notice is a condition precedent to the maintenance of a suit for the alleged injury; and that no notice of the alleged injury claimed by plaintiff to have been sustained by him, such as is required by said statutes of Kansas, has ever been given to this defendant; and it pleads these facts in bar of plaintiff's action."

The section of the statutes (to part of which reference is thus made in the answer) was enacted by the Legislature of Kansas in 1905 (Laws 1905, c. 341), amended in 1907, and appears in the General Statutes of 1909 as section 6999. It is the fellow servant statute, and its material parts are as follows: "Every railroad company organized or doing business in the state of Kansas shall be liable for all damages done to any employé of said company in consequence of any negligence of its agents; or by any mismanagement of its engineers or other employés, to any person sustaining such damage: Provided, that notice in writing that an injury has been sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured, to such railroad company within eight months after the occurrence of the injury: Provided, however, that where an action is commenced within said eight months, it shall not be necessary to give said notice."

The statute was introduced in evidence by both parties, by defendant as section 22, c. 341, Laws 1905, and by plaintiff as section 6999, Statutes 1909. Defendant further introduced decisions of the Supreme Court of Kansas, to...