Mitchell v. Wabash R. Co.

• Decision Date: 04 August 1902
• Citation: 97 Mo. App. 411,76 S.W. 647
• Parties: MITCHELL v. WABASH R. CO.
• Court: Missouri Court of Appeals

76 S.W. 647

97 Mo. App. 411

MITCHELL v. WABASH R. CO.

Court of Appeals at St. Louis, Missouri.

August 4, 1902.

RAILROADS — INJURY TO SERVANT — APPLICABILITY OF IOWA STATUTE — FELLOW SERVANTS — NEGLIGENCE — EVIDENCE — SUFFICIENCY — INSTRUCTIONS — PLEADINGS — ALLEGATION OF CONTRIBUTORY NEGLIGENCE — EXCESSIVE DAMAGES — APPEAL.

1. Code Iowa 1897, § 2071, providing that a railway company shall be liable for damages sustained by employés in consequence of the neglect of its agents or mismanagement of its engineers or other employés, "when such wrongs are in any manner connected with the operation of any such railway," does not fix the liability of a railway company for injuries to a servant employed in the reconstruction of an abandoned railway track in that state.

2. A laborer employed in the reconstruction of an abandoned railway track and the boss or foreman engaged in the same service are, under the laws of Iowa, fellow servants.

3. Mere evidence that a push car, which plaintiff and other employés had been ordered to use in moving old rails, broke down when overloaded, causing a rail to fall on plaintiff, is not sufficient, under the laws of Iowa, to authorize a recovery.

4. The evidence showed that a section of the sill of the car broke. Experts testified that the sill was brittle, cut from an old or decaying tree, did not possess more than a third to a fourth of the resisting power of a sound sill of the same size, and that it was unfit for a sill in a push car. It was painted so that the character of the wood was not open to ordinary observation. Held sufficient to take to the jury the question whether the company was negligent in failing to furnish a reasonably safe car.

5. Where, in an action against a railway company for injuries to a servant by reason of a defective push car, the instructions requested by both parties submitted the case to the jury on the theory that it was the company's duty to furnish a reasonably safe car, the company on appeal could not insist that the servant should have been held to strict proof of the allegation in the petition that the company built the car in its own shops.

6. Whether or not the company built the car was immaterial, the act complained of consisting in furnishing a defective car.

7. The person in charge of the shops of the company at a certain place testified that he built the company's push cars, and supposed he made the one which the servant used, and that the cars built at the shops were for the division on which the car in question was used. The company offered no evidence as to where the car was built. Held to warrant a finding that the company built the car which the servant used.

8. A railway company negligently furnishing to its servants a defective push car, which would not hold an ordinary load, would be liable for the injuries sustained to a servant by reason of its breaking down, though the servant at the time overloaded it.

9. A party on appeal could not complain of error which it adopted and acted on at the trial.

10. Requested instructions not supported by the evidence are properly refused.

11. The damages awarded at a trial of an action for personal injuries furnish no precedent for a verdict on a subsequent trial, where the evidence of the extent and permanence of the injury may have been stronger on the latter trial than at the former.

12. Where the trial judge refuses to set aside a verdict as excessive, the court on appeal cannot interfere unless it is manifest that the jury were actuated by passion or prejudice.

13. Plaintiff, about 19 years of age, was injured by being struck on the ankle by a steel rail falling from a push car on its breaking down. He was a farmer, and after the injury was unable to plow more than a few hours at a time, and had been lame ever since. The expert evidence tended to prove that the sprain was a severe one. A physician testified that there was evidence of injury to the bone; another stated that the injury might, and a third said he thought it would, be permanent. All agreed that he could not walk in a natural manner, and that the ankle joint would for a long time continue weak, and more liable to injury and disease than a sound one. Held, that a verdict for $2,500 would not be disturbed.

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

Action by John Mitchell, by Thomas Mitchell, his next friend, against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The substantive allegations of the amended petition, on which the cause was tried, are that plaintiff, in April, 1899, was employed by the defendant as a common laborer; that he was put to work, with other employés of defendant, on the reconstruction of an old and abandoned piece of railroad near Bussey, in the state of Iowa; that he was inexperienced in such work; that, after having worked on the reconstruction of the road for about five days, he was directed by the section foreman, along with eight or ten other inexperienced laborers, to take a push car, and move some old steel rails; that in obedience to the order the push car was loaded with the old rails, and pushed along for a short distance, when it broke down, and one of the rails fell upon the plaintiff's ankle, and severely and permanently injured it. The negligence alleged is that the defendant constructed the push car out of brash, unsound, and insufficient timber, and that from the inexperience of the employés put to load it, and by the permission of the section foreman, it was overloaded; that it broke down by reason of faulty construction. The answer alleged that under the laws of Iowa the plaintiff and other laborers working with him and the section boss were fellow servants; alleged that the injury, if any, to plaintiff, was occasioned by the negligence of plaintiff and his fellow servants in overloading the push car; alleged that prior and subsequent to the injury the plaintiff was afflicted with rheumatism, and that his injuries have been complicated on account of said disease, and not on account of the injury, if any, received by the breaking down of the car; and denied generally all other allegations not specifically admitted. The reply was a general denial.

Plaintiff's evidence tended to prove that he was raised on a farm, was about 19 years old at the time of the accident, and had never before worked on a railroad; that he had worked 5 or 6 days on the road for defendant before he was injured, but had not used a push car before the injury; that on the morning of the injury he, with eight or ten other young men employed by defendant, were told by the section boss to take a push car and move some old steel rails that had been torn up and scattered along the roadway; that the push car they were told to use looked like a new car, and was painted; that he did not inspect the car; that he and his co-employés took the car, pushed it to the old rails, and loaded it with them; that, in order to move the car, it had to be pushed along the track by the men, some at the end and some at the side of the car; that he took a position at the side of the car, and was helping to push it along the track; that when it had been moved a short distance one of the sills which supported the platform or bottom of the car broke in two, and some of the rails fell off, one striking plaintiff on the ankle and inflicting the injury; that the sill that broke was a light, brittle piece of wood, either partially decayed or taken from an old, dying tree, and was unfit for the purpose for which it was used, and would bear only from one-third to one-fourth the weight of a sound piece of wood of the same size, and that its defects could have been easily detected from its weight, or from boring into it, or working it, or from inspection; that there were 20 rails on the car when it broke down, and that 16 of such rails were an ordinary load for a push car; that plaintiff's fellow servants who assisted in loading the car were inexperienced in loading such cars, and that the section boss gave no directions as to the number of rails that should be loaded on the car, but was near by when it was loaded. In respect to the making of the car John Mitchell (another person than the plaintiff, but testifying as a witness for the plaintiff) swore that the defendant had all of its push cars built at Moberly, Mo., and that he built them, and that he supposed he built the car that broke down, but did not know, as he was not at Bussey when or after the car broke down; that he built push cars that were sent by defendant to Iowa to be used in the reconstruction of that piece of road; that the defendant had two push cars that he did not construct, but he did not know where they were. In respect to the injury the evidence is that plaintiff's ankle was lacerated, bruised, and badly sprained; that he was treated in the defendant's hospital at Moberly, Mo., for five or six months, and was lame when he left the hospital and had continued lame; that the sprained ankle was larger than the other one; that it will take a long time to get entirely well, and possibly the injury is permanent; and that there was evidence of injury to the ankle bone; and that the injury prevents the plaintiff from walking in the natural way; and that the joint will always be weaker on account of the injury, and more liable to disease and easier hurt. On the part of defendant, the evidence of the physician who treated plaintiff while in the hospital was that no bones were broken; that the ankle was lacerated, and seriously sprained; that a short time after he entered the hospital a rheumatic condition developed in plaintiff's wrist and elbow, and involved his ankle joint, and retarded his recovery from the injury; that sprains of the ankle joint are of a serious character, and it takes time for recovery, but will get well if no bones are crushed, and that there was no reason why plaintiff should not...