Markey v. Louisiana & M. R. R. Co.

• Decision Date: 23 November 1904
• Citation: 185 Mo. 348,84 S.W. 61
• Parties: MARKEY v. LOUISIANA & M. R. R. CO.
• Court: Missouri Supreme Court

84 S.W. 61

185 Mo. 348

MARKEY v. LOUISIANA & M. R. R. CO.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

RAILROADS—PERSONAL INJURIES—LIABILITY OF LESSOR COMPANY — JURISDICTION — APPEARANCE—WAIVER —MASTER AND SERVANT — DEFECTIVE MACHINERY — KNOWLEDGE OF EMPLOYER —PLEADING—ADMISSION—EVIDENCE— SUFFICIENCY—EXPERT TESTIMONY—PROVINCE OF JURY—DAMAGES—EXCESSIVE AWARD.

1. A written stipulation filed in court, signed by the counsel of the parties, agreeing that the cause might be set for trial for a certain day of a certain term, was an unlimited appearance by the defendant, waiving a right to plead to the jurisdiction.

2. Evidence held to justify the court in deciding that counsel who appeared for defendant was its authorized counsel, so as to bind defendant thereby.

3. Under the act of 1870 (Laws 1870, p. 89) permitting a railroad corporation of the state, owning a railroad therein, to lease such road to a railroad corporation of another state under certain conditions, one of which is that the lessor shall remain liable as if it operated the road itself, the liability of the lessor company is not limited to its duties to passengers, shippers, wayfarers, etc., for the nonperformance of duties as a common carrier, but includes liability for neglect of duty to the injury of one of its servants.

4. In an action by a locomotive engineer against his employer for personal injuries, held, that an instruction in the nature of a demurrer to the evidence was properly refused.

5. Where a railroad company leasing its road to a foreign corporation was sued for personal injuries by a servant of the lessee, and the answer "admits the leasing of said roadbed, right of way and line of railroad to the C. & A. Co. [lessee] as alleged in the petition," there was no error in an instruction assuming that it was a fact that the defendant company was the owner of the road.

6. In an action by locomotive engineer for personal injuries from explosion of a boiler, an instruction that if the defects in the boiler had existed for a length of time prior to the accident reasonably sufficient for the employer to have discovered and repaired the same, etc., plaintiff might recover, was substantially supported by evidence that the crown sheet, from which the trouble came, was badly worn, until it was too thin for use, and testimony by experts that it must have been in that condition

for months, and evidence justifying an inference that the company knew or should have known of the defect.

7. The opinions of witnesses as experts are merely advisory, and not binding on the jury; and the jury should accord to them such weight as they believe, from all the facts and circumstances in evidence, they are entitled to receive.

8. Where a locomotive engineer, 45 years old, physically sound, and proficient in his trade, standing at the front among men in his calling, was so injured as to necessitate the amputation of both legs below the knees, and was still suffering, 14 months after the accident, with ground for belief that he would suffer in the future, a verdict for $35,000 was excessive, and should be reduced to $20,000.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Patrick Markey against the Louisiana & Missouri River Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

Scarritt, Griffith & Jones, for appellant.

(1) Jurisdiction. Rev. St. 1899, §§ 562, 997; Byler v. Jones, 79 Mo. 261; Capital City Bank v. Knox, 47 Mo. 333; Vastine v. Bast, 41 Mo. 493; Graham v. Ringo, 67 Mo. 324.

Answering over and appearance at trial do not waive exception to jurisdiction. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Fare v. Gunter, 82 Mo. 522; Brackett v. Brackett, 61 Mo. 222; Christian v. Williams, 111 Mo. 430, 20 S. W. 96; Bentz v. Eubanks, 32 Kan. 321, 4 Pac. 269; Shirley v. Hagar, 3 Blackf. (Ind.) 225; Higgins v. Beckwith, 102 Mo. 456, 14 S. W. 931; Evansville Grain Co. v. Mackler, 88 Mo. App. 186.

(2) The defendant is not liable under the allegations of the petition. Wilkerson v. Eilers, 114 Mo. 245, 252, 21 S. W. 514; Rev. St. 1899, § 1060; East Line & Red River R. Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805; Baltimore & O. & C. R. Co. v. Paul, 143 Ind. 23, 40 N. E. 519, 28 L. R. A. 216; Hukill v. Railroad (C. C.) 72 Fed. 745; Arrowsmith v. Railroad (C. C.) 57 Fed. 165; Nugent v. Railroad, 80 Me. 62, 12 Atl. 797, 6 Am. St. Rep. 151; Mahoney v. Railroad, 63 Me. 68; Redfield on Railroads, vol. 1, p. 68; Wood, Railway Law, § 490; Elliott on Railroads, vol. 2, § 469; Heron v. Railroad, 68 Minn. 542, 71 N. W. 706; Railroad v. Washington, 86 Va. 629, 10 S. E. 927, 7 L. R. A. 344; Pierce on Railroads, 283; Miller v. Railroad, 125 N. Y. 118, 26 N. E. 35; Lee v. Railroad, 116 Cal. 97, 47 Pac. 932, 38 L. R. A. 71, 58 Am. St. Rep. 140; Murch v. Railroad, 29 N. H. 36, 61 Am. Dec. 631; Mahoney v. Railroad, 63 Me. 68; Nugent v. Railroad, 80 Me. 62, 12 Atl. 797, 6 Am. St. Rep. 151; Railroad v. Curl, 28 Kan. 622; Caruthers v. Railroad, 59 Kan. 629, 54 Pac. 673, 44 L. R. A. 737; Hayes v. Railroad, 74 Fed. 279, 20 C. C. A. 52.

Cases to the contrary. Railroad v. Brown, 17 Wall. 445, 21 L. Ed. 675; Thomas v. West Jersey R. Co., 101 U. S. 71, 25 L. Ed. 950; Oregon R. & N. Co. v. Railroad, 130 U. S. 1, 9 Sup. Ct. 409, 32 L. Ed. 837; Quested v. Railroad, 127 Mass. 204; Braslin v. Railroad, 145 Mass. 64, 13 N. E. 65.

(3) Section 1060, Rev. St. Mo. 1899, did not create new liabilities. Rev. St. 1899, § 1060.

Missouri cases: Smith v. Railroad, 61 Mo. 17; Main v. Railroad, 18 Mo. App. 388; McCoy v. Railroad, 36 Mo. App., loc. cit. 458; Brown v. Railroad, 27 Mo. App. 394; Price v. Barnard, 65 Mo. App. 649; Blackmore v. Railroad, 162 Mo. 455, 62 S. W. 993; Rev. St. 1899, § 1111.

(4) Plaintiff's instructions (expert testimony): Railroad v. Whitehead, 71 Miss. 451, 15 South. 890, 42 Am. St. Rep. 472; Railroad v. Malone, 109 Ala. 509, 20 South. 33; Moratzky v. Wirth, 74 Minn. 146, 76 N. W. 1032; Hoyberg v. Henske, 153 Mo. 63, 55 S. W. 83; Cosgrove v. Leonard, 134 Mo. 419, 33 S. W. 777, 35 S. W. 1137; Rose v. Spies, 44 Mo. 20; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; Bourke v. Whiting, 19 Colo. 1, 34 Pac. 172; Jones v. Fitzpatrick, 47 S. C. 40, 24 S. E. 1030; City of Kansas v. Hill, 80 Mo. 533; Railroad v. Fowler, 142 Mo. 670, 44 S. W. 771; Hull v. St. Louis, 138 Mo. 618, 40 S. W. 89, 42 L. R. A. 753; City of Kansas v. Butterfield, 89 Mo. 646, 1 S. W. 831; St. Louis v. Ranken, 95 Mo. 189, 8 S. W. 249.

(5) Excessive verdict. Chitty v. Railroad, 148 Mo., loc. cit. 82, 49 S. W. 868; Chitty v. Railroad, 166 Mo. 435, 65 S. W. 959; Cambron v. Railroad, 165 Mo. 543, 65 S. W. 745; Newcomb v. Railroad (Mo. Sup.) 81 S. W. 1069; Scullin v. Railroad (Mo. Sup.) 83 S. W. 760; Railroad v. Jackson, 55 Ill. 492, 8 Am. Rep. 661; Kroener v. Railroad, 88 Iowa, 16, 55 N. W. 28; Railroad v. Dwyer, 36 Kan. 58, 12 Pac. 352; Wimber v. Railroad, 114 Iowa, 551, 87 N. W. 505; Wood v. Railroad (C. C.) 88 Fed. 44.

Frank P. Walsh, Geo. Robertson, John M. Cleary, and E. R. Morrison, for respondent.

(1) Defendant waived all objections to the jurisdiction of the court over its person by appearing and stipulating to try the case on June 12th, and by accepting service of notice to take depositions, and appearing and cross-examining witnesses on the merits of the case, without objecting to the jurisdiction of the court. Baisley v. Baisley, 113 Mo. 544, loc. cit. 550, 21 S. W. 29, 35 Am. St. Rep. 726; Bohn v. Devlin, 28 Mo. 319; Orear v. Clough, 52 Mo. 55; Peters v. Railroad, 59 Mo. 406; Tower v. Moore, 52 Mo. 118; Seay v. Sanders, 88 Mo. App. 478; Bankers' Life v. Shelton, 84 Mo. App. 639; Griffin v. Van Meter, 53 Mo. 430; Crawford v. Railroad, 171 Mo. 78, 66 S. W. 350; Bates & Wright v. Scott, 26 Mo. App. 430; Berry v. Trust Co., 75 Mo. 433; Page v. Railroad, 61 Mo. 79; Wolff v. Danforth Co., 70 Mo. 182.

(2) No appeal was taken from the judgment of the court on the issues raised by the plea

in abatement. That judgment still stands unappealed from and unreversed, and therefore the matters contained in that plea have passed in rem judicatum. No motion to set aside and for a new trial was filed within the statutory four days after the rendition of the judgment. Exceptions are therefore not properly preserved. Baisley v. Baisley, 113 Mo. 550, loc. cit., 21 S. W. 29, 35 Am. St. Rep. 726; McClure v. Paducah, 90 Mo. App. 574; Shockley v. Fischer, 21 Mo. App. 551; Kaufman v. Schneider, 35 Ill. App. 256.

(3) The defendant, being a domestic corporation which has leased its road to a foreign corporation, remains liable to plaintiff, as though operating the road itself. Rev. St. Mo. 1899, § 1060 (Laws 1870, p. 89); Smith v. Railroad, 61 Mo. 17; State ex rel. v. Railway, 89 Mo. 535, loc. cit., 14 S. W. 522; McCoy v. Railroad, 36 Mo. App. 445; Brown v. Railroad, 27 Mo. App. 394; Price v. Barnard, 70 Mo. App. 179, loc. cit.; Logan v. Railroad, 116 N. C. 940, 21 S. E. 959; Railway Co. v. Hart, 104 Ill. App. 57; Harden v. Railway Co., 129 N. C. 354, 40 S. E. 184, 55 L. R. A. 784, 85 Am. St. Rep. 747; Brown v. Railway, 131 N. C. 455, 42 S. E. 911; Pennsylvania Co. v. Ellett, 132 Ill. 660, loc. cit., 24 N. E. 559; Railway Co. v. Whipple, 22 Ill. 109; Noyes, Intercorporate Relations, § 216; Thompson's Law of Negligence, § 1955; Wood's Railway Law (Minor's Ed.) §§ 345, 490; Thomas v. Railroad, 101 U. S. 71, 25 L. Ed. 950; Railroad v. Brown, 17 Wall. 445, 21 L. Ed. 675; Braslin v. Railroad, 145 Mass. 64, 13 N. E. 65; Harmon v. Railway, 28 S. C. 401, 5 S. E. 835, 13 Am. St. Rep. 686; Railway Co. v. Mayes, 49 Ga. 355, 15 Am. Rep. 678; Nelson v. Railroad, 26 Vt. 717, 62 Am. Dec. 614; opinions of Judge Adams in cases of Harmon v. Louisiana & Mo. R. R. Co. et al., 135 Fed. 202, and Keller v. K. C., St. L. & C. Ry. Co. et al., 135 Fed. 202.

(4) The defendant admitted in...