Monk v. Wabash R. Co.

• Decision Date: 29 April 1912
• Parties: MONK v. WABASH R. CO.
• Court: Missouri Court of Appeals

150 S.W. 1083

166 Mo. App. 692

MONK v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

April 29, 1912.

On Motions for Rehearing and to Modify, November 11, 1912.

1. TRIAL (§ 156)—RULING ON DEMURRER TO EVIDENCE—PRESUMPTIONS.

The court in passing on a demurrer to the evidence must assume the truth of the testimony for the defeated party and allow all reasonable inferences which may be drawn therefrom in his favor.

2. MASTER AND SERVANT (§ 137)—INJURY TO SERVANT — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE.

A sectionman stood, in obedience to a railroad company's order, at the north end of a bridge to signal an approaching train because of the defective condition of the track. The engineer had been ordered to slow down. The section hand saw the approaching train and gave the proper signal, but the engineer failed to notify him that the signal was seen, and in consequence thereof the sectionman remained on the track continuing the signal. He could not tell by looking down the track that the train was coming at a speed in excess of five miles an hour, the rate named in the slow order, but he realized that the train was approaching at a rapid rate as it got on the bridge, when he immediately endeavored to save himself by clearing the track, but he fell and was struck by the train. The engineer knew of the condition of the track and expected a flagman to be there. Held, that the railroad company was liable for the injuries because of the negligence of the trainmen.

3. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— JURY QUESTION.

Whether such sectionman was guilty of contributory negligence was a question for the jury.

4. EVIDENCE (§ 586)—CREDIBILITY—PHYSICAL FACTS.

The testimony of a witness with normal eyesight, who is looking in the direction of an object in plain view, that he did not see such object should not be accepted as the truth.

On Motion to Modify.

5. APPEAL AND ERROR (§ 662)—JUDGMENT—PRESUMPTION.

The court on appeal must accept a record judgment as absolute verity unless other parts of the record show that it cannot be done, and it must be presumed, unless contradicted by the record, that the judgment entered is the judgment actually rendered.

6. ATTORNEY AND CLIENT (§ 86)—AUTHORITY OF ATTORNEY—STIPULATIONS.

An attorney, by reason of his general authority as such, has implied authority to stipulate for his client, a defendant in a pending action, that the cause, on the granting of a new trial, shall be submitted to the judge on the evidence in the bill of exceptions, and that defendant shall present a demurrer to the evidence which, if sustained, shall be followed by judgment for defendant, while, if overruled, judgment shall be for plaintiff for a specified sum, and a judgment entered thereon for plaintiff is binding on defendant.

7. APPEAL AND ERROR (§ 934) —PRESUMPTIONS—AUTHORITY OF ATTORNEY TO ACT FOR CLIENT.

Where a judgment is rendered pursuant to an agreement of the attorneys of the parties, the court on appeal must assume that the lower court found that the attorneys were authorized to make the agreement.

Appeal from Circuit Court, Adair County ; Nat M. Shelton, Judge.

Action by Leonard Monk against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals and moves to modify the judgment. Reversed and judgment rendered.

See, also, 150 S. W. 1087.

Campbell & Ellison and Weatherby & Frank, all of Kirksville, for appellant. J. L. Minnis, of St. Louis, and Higbee & Mills, of Kirksville, for respondent.

ELLISON, J.

Plaintiff was an employs of the defendant railway as a sectionman under the immediate direction of a foreman. He was seriously injured and, charging the injury to the negligence of defendant's servants, brought this action for damages. The trial court sustained a demurrer to the evidence and rendered judgment for the defendant, whereupon plaintiff appealed.

It appears from the record that there had been a former trial of this cause, in which plaintiff obtained a verdict for $10,000. A motion for new trial filed by defendant was sustained for the following reasons: "First. Because the court is of the opinion that it erred in not sustaining defendant's demurrer tendered at the close of plaintiff's case. Second. Because the court is of the opinion the verdict is the result of perjury on the part of plaintiff in that he swore he was on his feet giving the slow signal from the time the train came in sight, when the great preponderance of the testimony introduced by plaintiff satisfies the mind of the court there was no signal given." Plaintiff prepared his bill of exceptions, which was duly signed by the judge and filed. Afterwards it was agreed between the parties that there should be a new trial by the court without a jury, and the evidence should be that taken on the former trial as preserved in the bill of exceptions. That bill of exceptions was submitted to the court by the parties, and defendant offered, and the court gave, a peremptory instruction declaring "that under the pleadings and evidence the plaintiff cannot recover." Judgment was then entered for defendant, and plaintiff appealed to this court.

It is a fundamental rule that in passing on a demurrer to the evidence we must assume the truth of the testimony in behalf of the defeated party and allow all reasonable inferences which may be drawn therefrom in his favor. It is from that standpoint we must consider the case. Knorpp v. Wagner, 195 Mo. 637, 93 S. W. 961; Pauck v. St. Louis Beef & Prov. Co., 159 Mo. 467, 61 S. W. 806; Wilson v. Board, 63 Mo. 137.

It is admitted by defendant that plaintiff was in its employment as a sectionman, and that on the night of his injury he was sent by his foreman, before 9 o'clock at night, to a bad or dangerous place on the track near a bridge about 200 feet long to signal trains; a passenger train being due at that hour. It is conceded that he took with him a lantern and a raincoat. It is likewise conceded that he was injured by being run over by defendant's train and his arm cut off, besides other injuries of less consequence. Plaintiff charges negligence on the part of defendant's servants in charge of the train, and denies contributory negligence. Defendant's theory of the cause of his injury is that he was asleep on the track with his coat for a pillow. This theory is not said to be supported by any direct evidence, but is in the nature of a conclusion drawn by counsel as the most reasonable way to account for the injury conceded to have been inflicted.

The bad track was at the north end of a bridge, about three-fourths of a mile north of the town of Greentop, in Schuyler county, and was caused by the embankment having slipped to such extent as to make necessary great care and caution in trains passing over it ; and that was the cause of plaintiff being sent to stand at the place and signal an oncoming train. On account of rains, the condition had existed for some little time, and train crews had first been ordered to slow down to ten miles an hour when passing over it, but afterwards that order was changed to five miles. Notwithstanding the order, it was deemed prudent to station a man at the place to signal night trains.

Plaintiff testified that he was directed to take his, position at the north end of the bridge; that he could have signaled by standing 150 feet north of the bridge, but his orders were to take position at Cie end of the bridge. Asked on cross-examination if he could not have signaled from the south end of the bridge, he answered: "Yes, I could if the boss had put me there." Literal compliance with the order would put him on the track. But, aside from that, the condition there made it necessary that he place himself on the track, for the embankment had slid off on one side up to the end of the ties, and the slope on the other side was such as to make it impractical to stand off of the track. He testified that when the train came around a curve the track was straight, and he gave the engineer the slow signal by slowly raising his lantern up and down. It was the duty of the engineer to answer or respond to the signal by two sharp blasts of the whistle, but he did not do so, and plaintiff continued at his place signaling. He stated that at night, looking straight down the track into the headlight of an approaching engine, one cannot tell whether it is coming fast or slow ; and that he did not know it was going at a rapid rate until it struck the south end of the bridge, when :the rumble or noise, such as is made on a bridge, warned him of his danger, and he immediately attempted to get off the track, when he slipped and fell between the rails and quickly endeavored to throw himself outside by turning over the west rail, but before he was completely outside, the wheel of the engine caught his arm and cut it off. As we have said, plaintiff testified he could not tell by looking straight down the track that the train was running rapidly, but supposed it would be coming slow as the orders were to run slow ; but he further stated the reason he remained on the track was that, up to the time the engine came upon the south end of the bridge and made the rumbling noise, he "kept thinking that he (the engineer) would answer" the signal. Plaintiff walked to the nearest house and was afterwards taken to a hospital. Persons who soon heard of the injury went immediately to the place. Plaintiff's avercoat was found 8 or 10 feet north of the bridge, his cap 6 or 8 feet north of the coat, and the lantern at the north end, while his severed hand and elbow were found about 35 feet north of the coat, one between the rails and the other outside.

The judgment of witnesses for plaintiff differed as to the speed of the train. Plaintiff himself stated that he thought it came upon him at 15 or 20 miles an hour. Other witnesses put it much faster, and yet the conductor of the train (introduced by plaintiff) said it was about...