Moudy v. St. Louis Dressed Beef & Provision Co.

• Decision Date: 07 July 1910
• Citation: 149 Mo. App. 413,130 S.W. 476
• Court: Missouri Court of Appeals
• Parties: MOUDY v. ST. LOUIS DRESSED BEEF & PROVISION CO.

130 S.W. 476

149 Mo. App. 413

MOUDY v. ST. LOUIS DRESSED BEEF & PROVISION CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

Rehearing Denied July 19, 1910.

1. DEPOSITIONS (§ 88)—ADMISSION — FOUNDATION.

Under Rev. St. 1899, § 2904 (Ann. St. 1906, p. 1669), providing that facts authorizing the reading of a deposition may be established by the deposing witness, the statement of a witness in his deposition that he was about to change his domicile, while not of itself sufficient to authorize the reception of the deposition in evidence, was sufficient when aided by proof that the witness actually did leave and had not returned.

2. TRIAL (§ 260)—REQUEST TO CHARGE—INSTRUCTIONS GIVEN—"BRAKE."

A request to charge that defendant's servants, at the time they moved the car that injured plaintiff, were entitled to presume that the car was properly equipped with a brake, unless the jury believed that defendant knew to the contrary, and that by a "brake" was meant such a brake as is usually and customarily supplied as a part of the equipment of an ordinary freight car of the kind and character disclosed by the evidence, was substantially covered by an instruction given that defendant could presume that the car was properly equipped with a brake unless the jury believed that defendant actually knew the contrary, or by the exercise of ordinary care would have known the contrary, and that by "brake" was meant such a brake as was usually and customarily supplied as a part of the equipment of an ordinary freight car of the kind and character disclosed by the evidence.

3. RAILROADS (§ 297)—ACCIDENT TO TRAIN— NEGLIGENCE—PRESUMPTION.

Where a switchman employed by a railroad company was injured in a collision caused by the alleged negligent operation of a car on a switch track by a different corporation, there being no relation of master and servant between the switchman and defendant, there was no presumption that the car operated by defendant was properly equipped with a brake.

4. RAILROADS (§ 297)—ACCIDENT TO TRAIN— NEGLIGENCE—INSTRUCTION.

Where a switchman in the employ of one railroad company was injured in a collision between his train and a freight car alleged to have been negligently moved on a switch by the employés of defendant, another railroad company, an instruction that, unless the jury found from the evidence that a reasonably prudent and cautious man under the circumstances would not have attempted to move the car without an engine to control it, plaintiff could not recover, properly submitted the question of defendant's negligence in the operation of the car.

5. RAILROADS (§ 297)—ACCIDENT TO TRAIN— INJURIES — NEGLIGENCE — QUESTION FOR JURY.

Where plaintiff, a switchman, was injured in a collision between his train and a car operated by the servants of another company, whether defendant was negligent in operating the car on which there was no available brake, without making a sufficient inspection to ascertain whether the brake was in good condition, held for the jury.

6. TRIAL (§ 252)—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

Since a plaintiff pleading several acts of negligence may recover by proof of one as the cause of the injury, it is unnecessary to instruct the jury as to the acts of negligence alleged but not proved.

7. RAILROADS (§ 296)—ACCIDENT TO TRAIN— PROXIMATE CAUSE — INTERVENING OR CONTRIBUTORY CAUSE.

Where, in an action for injuries to a switchman by the alleged negligent operation of a freight car, which was not equipped with an efficient brake, there was proof that a derailing switch had been improperly located, and, if it had been properly located, might have prevented the collision, and there was no evidence to show whose duty it was to provide such switch, nor that if it had been properly located it would have prevented the accident unless it was open, etc., the alleged negligent location of the switch did not constitute such an intervening cause between the defendant's negligence in operating the defective car and the injury as would preclude plaintiff's recovery under the rule that plaintiff may recover for a proximate contributing cause of an injury by a tort-feasor, though it is also shown that another's negligence also contributed to the injury.

8. JUDGMENT (§ 237)—AGAINST ONE OR MORE DEFENDANTS—DISMISSAL—STATUTES.

Rev. St. 1899, § 545 (Ann. St. 1906, p. 584), provides that every person who shall have a cause of action against several may bring suit thereon jointly against all or as many of the persons liable as he may think proper. Held that, if the proof justifies the court in sustaining a demurrer as to some of the defendants, their dismissal does not affect plaintiff's right to recover against the others.

9. CONTRIBUTION (§ 5)—JOINT TORT-FEASORS —STATUTES.

Rev. St. 1899, § 2870 (Ann. St. 1906, p. 1654), provides that defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution and all other consequences of such judgment in the same manner and to the same extent as defendants in a judgment in an action founded on contract. Held, that such section only provides for right of contribution after judgment as between defendants therein, and has no application to proceedings prior thereto.

10. DAMAGES (§ 132)—PERSONAL INJURIES— VERDICT—EXCESSIVENESS.

Plaintiff, a switchman 46 years old, was injured in a collision between his train and a car negligently operated by defendant. His leg was scarred considerably, his kneecap was injured, and the wounds did not heal for about a month. The muscles on his right leg were somewhat shriveled, and there were some cuts and bruises on the same leg. Since his injury, his knee had been weak, and he had been unable to continue work as a switchman at which he formerly received 30 cents an hour. There was no direct evidence that he suffered severe physical pain or great mental anguish, but it appeared that, if there was any permanent impairment in the function of the leg, it would be slight. Held, that a verdict awarding plaintiff $5,000 was excessive and should be reduced to $3,500.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by William Moudy against the St. Louis Dressed Beef & Provision Company and others. Judgment for plaintiff against the St. Louis Dressed Beef & Provision Company alone, and it appeals. Affirmed on condition.

W. B. Thompson and Ford W. Thompson (Ralph Crews, of counsel), for appellant. Phil H. Sheridan, Henry B. Davis, and A. R. Taylor, for respondent.

NIXON, P. J.

This was an action for personal injuries sustained by the plaintiff. The suit was brought originally against the appellant herein, together with the Missouri Pacific Railway Company and the Manufacturers' Railroad Association of St. Louis; but, as will be shown, the court at the conclusion of the plaintiff's evidence sustained a demurrer to the evidence so far as the two last-named defendants were concerned.

The petition charges: That the Manufacturers' Railroad Association of St. Louis, the Missouri Pacific Railway Company, and the St. Louis Dressed Beef & Provision Company are the owners or jointly interested as lessees, licensees, and operators of certain railroad tracks in the city of St. Louis, east of Broadway, commonly known as the "Anheuser-Busch switches." That plaintiff on or about the 29th day of September, 1905, was in the employ of the St. Louis, Iron Mountain & Southern Railway Company in the capacity of a switchman. That defendant the St. Louis Dressed Beef & Provision Company has a place of business just south of one of said switches known as the "Anheuser-Busch switches" and facing Broadway in said city, and that a railroad track owned or operated by the defendants which is adjacent to the establishment of the St. Louis Dressed Beef & Provision Company intersects another railroad track owned and operated by the defendants. That the St. Louis Dressed Beef & Provision Company by its servants and agents so negligently handled a car loaded with ice at its place of business that, without any negligence on the part of the plaintiff, said car was allowed to become loosened, ran down the switch track, and collided with the train upon which plaintiff was riding, and crushed plaintiff between the engine and a car of said train. That the railroad track leading from appellant's establishment was owned and operated by the defendants and is on a very steep grade, so that it is unsafe to move cars on said grade without the use of an engine to control them, which fact was known to the defendants, or by the exercise of ordinary care might have been so known. The first specific charge of negligence is that said railroad track was built with a grade so steep that it was unsafe to attempt to handle cars on said grade without the use of an engine, and that the car aforesaid was attempted to be moved without an engine to control it. As a second specific charge of negligence, it is alleged that a derailing switch was built so near the point of intersection that, when said car became loose, said derailing switch was unable to prevent a collision by reason of its closeness. As a third specific act of negligence, plaintiff alleged that the employés of the defendants were attempting to move a car on said switch without the use of an engine, thereby allowing the same to escape from them and run down said track and collide with the train upon which plaintiff was riding. It is further charged in the petition that the grade was so steep that it was necessary not only to have a brake on such car on said grade, but also to keep constantly blocks under the wheels of said car to keep it from moving, and plaintiff alleges as a specific act of negligence: That defendants neglected to set a brake on said car and to keep blocks under the wheels of said car so that said car became loosened and collided with the train on which plaintiff was riding. That, as a result of the collision, plaintiff...