McDermott v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1885
• Citation: 87 Mo. 285
• Parties: MCDERMOTT v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

87 Mo. 285

MCDERMOTT

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Clay Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

Geo. W. Easley for appellant.

(1) The statement attributable to Goodwin, that “Dawson was not a good railroad man any way,” was inadmissible for any purpose. It was not admissible to prove Dawson's incompetency. It was an opinion. Lawson's Expert Ev. 507, 520; Koons v. Iron Mt. Ry. Co., 65 Mo. 597; Ganeth v. Pacific Ry. Co., 49 Mo. 274; New England Glass Co. v. Lovell, 7 Cush. 319; White v. Ballou, 8 Allen 408. The statement was also incompetent to prove that defendant had notice or knowledge of Dawson's alleged incompetency, because not made at the time Goodwin was performing any duty in regard to hiring or discharging Dawson. McDermott v. The Hannibal, etc., Ry. Co., 73 Mo. 516; Adams v. Hannibal, etc., Ry. Co., 74 Mo. 553; Garth v. Howard, 8 Bing. 451. But if this statement was admissible for the purpose of charging defendant with notice it should have been restricted to that alone. McDermott v. Ry. Co., supra; Chapman v. Ry. Co., 55 N. Y. 583. The only proper way of proving the incompetency of an employe is by proof of the specific acts relied upon to establish the incompetency. Pittsburg, etc, Ry. Co. v. Ruby, 38 Ind. 294; s. c., 10 Am. Ry. Rep. 199; Banlee v. N. Y. & Harlem Ry. Co., 59 N. Y. 357. Notice to the employer may then be shown, by knowledge of the specific acts being brought home to him (38 Ind. 294; 59 N. Y. 357), or by proof of general reputation. Davis v. Detroit Ry. Co., 20 Mich. 105. (2) Defendant's demurrer to plaintiff's evidence should have been sustained. There was no evidence to justify the verdict, and where the court ought not to let the verdict stand, it ought not to let the case go to the jury. Randall v. Ry. Co., 29 Alb. Law J. 150. It was necessary for plaintiff to prove each of the following facts before he could recover: ( a) That Dawson was incompetent. McDermott v. Ry. Co., supra. ( b) That the injury to plaintiff was caused by Dawson's incompetency. McDermott v. Ry. Co., supra. ( c) That defendant knew of Dawson's incompetency before the accident. McDermott v. Ry. Co., supra. ( d) That plaintiff did not know of Dawson's incompetency and had not the means of knowing it. Wood's M. & S., sec. 382, 414, 422. “In suits by servants against their master where the plaintiff's case discloses defects of which an ordinary observer of the plaintiff's station would be expected to take notice, then the plaintiff must show that he did not and could not with ordinary care know the defects.” Wharton on Neg. sec. 243, a; Mook's Underhill on Torts, 60; Keegan v. Cavanaugh, 62 Mo. 232; Porter v. Hannibal, etc., Ry. Co., 71 Mo. 67; Dillon v. Railroad Co., 3 Dill. 319; Pierce on Railroad, 379, note 4. (3) The plaintiff's first instruction is erroneous ( a) in submitting the question of defendant's want of care in the original employment of Dawson. The law presumes that care was exercised in his employment. Wood's M. & S., sec. 346. And when a competent servant is employed his competency is presumed to continue and the master may rely on that presumption until notice of a change. Wharton on Neg., sec. 237; Wharton on Ev., sec. 1287; Chapman v. Erie Ry. Co., 55 N. Y. 579; Weeks' Dam. Abs. Inj., 257, note 5. ( b) It submits a ground of recovery upon which there was no proof. ( c) It ignores a material issue made by the pleading--plaintiff's knowledge of Dawson's alleged incompetency. (4) The plaintiff's second instruction is wrong. It does not require the roadmaster's knowledge to have existed at a time when he was performing any duty for defendant. (5) Plaintiff's third instruction is erroneous. Smith's M. & S. (3 Eng. Ed.) 216. (6) Plaintiff's first instruction refused was correct. Wonder v. Ry. Co., 3 Am. Rep. 148, note 5. (7) Defendant's second and seventh instructions should have been given. McDermott v. Ry. Co., supra; Harlan v. Ry. Co., 65 Mo. 25; Greenland v. Chaplin, 5 Ex. 243; Sharp v. Powell, 20 W. R. 584; 1 Add. on Torts (Wood's Ed.) p. 13, sec. 11; p. 12, sec. 10; Cooley on Torts, 69. (8) The third instruction asked by defendant should have been given. Waldhier v. Ry. Co., 71 Mo. 519. (9) The sixth instruction asked by defendant is undisputed law everywhere except in the trial courts of this state. Lee v. Detroit Bridge Co., 62 Mo. 565; Whart. on Neg. (2 Ed.) sec. 238.

Wm. S. Carroll for respondent.

(1) It is only necessary for a party plaintiff to prove as many of the facts alleged by him as amount to or constitute a cause of action, and when more causes of action than one are alleged, the proof of facts constituting one cause of action will be sufficient to entitle plaintiff to recover. Long v. Doxey, 50 Ind. 385; Dowling v. The Gerard B. Allen Co., 74 Mo. 13. (2) The second cause of action is one of a peculiar class with principles governing it not applicable in all respects to any other class of cases between master and servant. 17 Wall. 553; Greenleaf's Adm'r v. Ill. C. Ry., 29 Iowa, 14; Patterson v. Ry. Co.,76 Pa. St. 389; Porter v. Hannibal, etc., Ry. Co., 60 Mo. 160; Fifield v. Northern Ry., 42 N. H. 225; 5 Vroom (N. J.) 151; Ill. Cent. Ry. v. Welch, 52 Ill. 183; Lalor v. C., B. & Q. Ry. Co., 52 Ill. 401; Ry. Co. v. Hurney, 28 Ind. 28; Railroad v. Gregory, 58 Ill. 272; Cooley on M. & S. 11. (3) In this class of cases knowledge of danger by servant is not a bar to recovery. Wood's M. & S., sec. 352. (4) If the servant incurred the risk by the express direction or command of the master or his agent, and the danger was not inevitable or a necessary result of performing the service, the master is liable although the servant knew. Patterson v. Ry.,76 Pa. St. 389; Laning v. Ry., 49 N. Y. 531; Greenleaf v. Ry., 29 Ia. 14; Filke v. Ry., 53 N. Y. 549; Clark v. Holmes, 7 H. &. N. 937; Wood's M. & S., secs. 378, 387; Hoey v. Ry. Co., 18 W. R. 930; Huddleston v. Machine Shop, 106 Mass. 282; Britton v. Catton Co., Law Rep. Exch. 130; Snow v. Ry. Co., 8 Allen 411. (5) Goodwin's declaration was admissible. He was a vice-principal. 17 Fed. Rep. 67; Stone v. Bird, 16 Kans. 490; 49 N. Y. 521; 55 N. Y. 583. (6) The verdict is for the right party, and the instructions as a whole fairly presented the case to the jury. This court will not reverse in such cases. 67 Mo. 313; 17 Mo. 310; 15 Mo. 175, 349, 598; 7 Mo. 128.

HENRY, C. J.

This is an action by which plaintiff seeks to recover damages for an injury which he sustained, alleged to have been occasioned by the negligence and incompetency of George Dawson, a section foreman in the employment of defendant, who, it is charged, ignorantly, negligently and carelessly ordered plaintiff, a section hand in defendant's employ, to go upon the railroad track and assist in removing from it a hand-car, when a train of cars was approaching and near at hand, the engine of which injured him, while so engaged. It is not clear whether the action is based upon the theory that Dawson and plaintiff were fellow servants or that Dawson was defendant's vice-principal. The petition has a double aspect, but the cause was tried on the theory that plaintiff and Dawson were fellow servants, and we will consider the petition as sufficient to warrant a recovery, in either view.

It is alleged that Dawson was a section foreman, and was incompetent when employed by the defendant, which it knew, or, by the exercise of ordinary care, would have learned that he was incompetent. These allegations are proper in an action to recover damages for an injury occasioned by the negligence, or incompetency of a fellow servant, while other facts are alleged in the petition, which constituted Dawson the company's alter ego, as was held in Moore v. Ry. Co., 85 Mo. 588. On the trial of the cause, plaintiff obtained a judgment from which defendant has appealed.

For plaintiff the engineer on the train which injured him testified that the engine was not exceeding one hundred yards from plaintiff when he first saw him. That plaintiff then had hold of the hand car. As soon as witness saw him, he blew the whistle, and continued to blow it until the hand car was struck. He attempted to stop the train but could not. The grade was a very steep down grade. He expected the men to get the hand car off the track. The train was running slow at the time. It was a regular train, and was on time. There was a pile of ties near the track, from four to six feet high, between ten and fifteen feet from the rail, and there was a ditch between the tie pile and the track.

The plaintiff testified that Goodman was the road master, and it was his duty and power to employ and discharge the foreman and work hands of defendant. That on the twenty-eighth of July they were engaged in raising and repairing the railroad track, and had a hand car on the track in the afternoon, between three and four o'clock. At that time a freight train came along, and Dawson ordered the hands to take the hand car off of the track. There was a large load of strap and tools on the hand car. “We tried to obey the order, but one end of the hand car stuck in the ditch alongside the track, and prevented us. I think we would have got it off in time but for that. While I was trying to get it off, some of the men said: ‘Look out for the train.’ I left the car and got off the track, but the train struck the hand car, threw it against and on me, and I was thrown against the pile of ties. I had worked on railroads six years, and on this section, under Dawson, about one year. When I first saw the train it was one hundred or one hundred and twenty-five yards away. Saw it just as it whistled. Dawson first gave the order to get on the hand car and take it to the crossing, before the whistle was blown, and when it whistled, he gave the order to take it from the track. In taking it off, the front wheels, stuck in the mud of the ditch, and, but...