Mitchell v. Chicago & Alton Railway Company
| Decision Date | 15 November 1904 |
| Citation | 83 S.W. 289,108 Mo.App. 142 |
| Parties | MITCHELL, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. E. M. Hughes, Judge.
Plaintiff a negro farm laborer, whose home is in Audrain county Missouri, was employed, on the third day of April, 1902, by the defendant company to work on its railroad tracks near Ridgely, in the State of Illinois. He and eight or ten other negroes were put to work unloading cinders from flat cars, on a new and unballasted portion of railroad track, with orders to get off the car, after unloading the cinders on the track and tamp the cinders between the cross-ties. On either side of these cars, about three feet from the ground, was fastened an iron stirrup by means of which the men got on and off the cars. On the afternoon of the third day plaintiff had been at this work, in getting off a moving car, which had just been unloaded, he placed his right foot in one of the stirrups with his hands on the car, in an effort to get off, and dropped to the ground alighting on the end of a cross-tie or some other hard substance, breaking his left leg between the knee and ankle. He was sent by the company to a hospital in Springfield, Illinois, where he was treated at the expense of the company until he was able to return to his home in Audrain county, Missouri. The suit is to recover damages for the injury to his leg.
The petition charges:
On the trial, the petition was amended so as to allege the following other charge of negligence, to-wit: "Defendant negligently and carelessly, while plaintiff was alighting from said car, from which it was his duty to alight, moved the car without notice to him."
The answer was, first, a general denial; second, a plea of contributory negligence; third, assumption of risk and, fourth, a release executed by plaintiff, pleaded in bar of a recovery.
The reply was a general denial and a special plea that the release was obtained through fraud, misrepresentation and mistake.
The evidence shows that from seventy-five to one hundred men were working in separate squads, on the tracks where plaintiff was working, and that William Lewis was the foreman or boss of all of them, with one or two sub-bosses under him. Plaintiff testified that he discovered the car (which he was helping to unload) was moving before quite all the cinders had been thrown off, and that Lewis hallooed to the men to get off and hallooed to him to get off; that only one of them could get off at a time on account of an embankment on one side of the car, and for the further reason there was but one stirrup on the side of the car where they could get off; that all the men preceded him and got off in safety; that when he got off, the car had moved about twenty or thirty feet and was moving at a rate of three or four miles an hour. He testified that he had never worked on a railroad before and did not know of the danger of getting off the car at the time he attempted to get off. He further testified that his left hip had been dislocated many years before the accident and his left leg was three or four inches shorter than the right one, but that he was able to do ordinary labor, such as farm labor, as well as any one.
Connelly, a witness for defendant, on cross-examination, testified that he was standing near the car when the plaintiff got off and saw him get off; that the other men got off the car before it began to move, but the plaintiff was too slow and the car was moving when he attempted to get off. Lewis and Connelly testified for defendant, that Lewis was two hundred yards away from the car when plaintiff attempted to get off, and Lewis swore that he gave no orders or commands for the men to get off the car, and did not know they were getting off, or when they got off, and knew nothing of plaintiff's injury until after he had been taken to the hospital and the man who took him returned and informed him of the fact.
The evidence shows that the cross-ties, where plaintiff was hurt, projected from eighteen to twenty inches beyond the rail; that that portion of the track was new and had not been ballasted; that the ground was level but there were some cinders laying around that had been thrown off the cars.
The release executed by plaintiff reads as follows:
Hamilton testified that he adjusted claims for the defendant company; that he prepared and read over the release to the plaintiff at the hospital a short time before plaintiff left there; that he explained the release to plaintiff and after some hesitation plaintiff made his mark in the presence of Johnson, who signed as a witness to plaintiff's signature, and that he paid plaintiff the dollar mentioned in his release. Johnson corroborated the statement of Hamilton. Plaintiff testified that he could neither read nor write; that his release was not read over to him; that Hamilton did not pay him a dollar, that he signed something but did not know what it was, that it was not read to him; that Hamilton told him it was to allow him full time while he was hurt; that Johnson was in the yard of the hospital but was some distance from him and Hamilton when he made his mark to the paper, and after he had made his mark Hamilton took it over to Johnson, who was sitting on a bench in the yard, and got him to sign it.
Judgment reversed and cause remanded.
F. Houston and C. C. Madison for appellant.
(1) The court erred in refusing the peremptory instructions asked by defendant. (a) The danger of alighting from a moving car was a matter concerning which the plaintiff's knowledge was equal to that of the foreman, and if it was negligent to order him to alight, it was contributory negligence on his part to alight. Hurst v. Railroad, 163 Mo. 309, 63 S.W. 695; Hill v. Drug Co., 140 Mo. 433, 41 S.W 909; Roberts v. Telephone Co., 166 Mo. 379, 66 S.W. 155; Beach on Contributory Negligence (3 Ed.), secs. 358, 359 and 360; Steinhauser v. Spraul, 127 Mo. 541, 28 S.W. 620, 30 S.W. 102; Fugler v. Bothe, 117 Mo. 575, 22 S.W. 1113; Marshall v. Hay Press Co., 69 Mo.App. 256; Harf v. Green, 168 Mo. 308, 67 S.W. 576; Nugent v. Milling Co., 131 Mo. 241, 33 S.W. 428; Jackson v. Railroad, 104 Mo. 456, 16 S.W. 413; Whatly v. Railroad, 4 Am. Neg. 624; Leitner v. Grieb, ___ Mo.App. ___; Shea v. Railroad, 74 Mo.App. 29. (b) There was no causal connection between the act of defendant and the injury to plaintiff; and under the evidence it can be attributable only to the failure of plaintiff to exercise proper care in stepping off, or to accidental causes for which defendant is not liable. Wendall v. Railroad, 75 S.W. 689; Maxey v. Railroad, 95 Mo.App. 309, 68 S.W. 1063; Holt v. Railroad, 84 Mo.App. 443; Beasley v. Transfer Co., 148 Mo. 413, 50 S.W. 87; Cunningham v. Journal Co., 95 Mo.App. 47, 68 S.W. 592. (c) The release was a bar to plaintiff's right to recover, as the...
To continue reading
Request your trial
-
Schantz v. Northern Pacific Railway Co.
...negligent order of one having authority to give the order." 8 Thomp. Neg. p. 580, § 3815. Also §§ 3809, 4924, 5382; 7 Thomp. Neg. § 5382; 83 S.W. 289. above case involves an order given to a laborer to jump off a train. Tuckett v. Am. Steam & Hand Laundry (Utah) 84 P. 507; Cook v. St. P. M.......