Neilon v. Kansas City, St. Joseph & Council Bluffs Ry. Co.

• Decision Date: 30 April 1885
• Parties: NEILON v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 599

NEILON

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

The instructions given for plaintiff were as follows:

“1. It was the duty of defendant to employ careful, reliable, and competent servants to conduct and manage its trains and cars, and if the jury believe from the evidence that the defendant failed to exercise reasonable care in the employment of such servant, or if defendant failed to discharge any servant or employe that it had good reason to believe was careless, unreliable and incompetent, and injury resulted therefrom to plaintiff, without a fault on his part, and while engaged in the discharge of his duties as employe of defendant, then defendant is liable for such injury.”

“2. If the jury believe from the evidence that Alfred La Brunerie was not a fit person to act as conductor of defendant's trains, and that after defendant had notice of such unfitness it continued him in its employ as such conductor, and the plaintiff, while engaged in his duties as a brakeman on defendant's train, and while exercising reasonable care, was precipitated between two of the cars of said train by reason of the carelessness and unfitness of said La Brunerie, as conductor of said train in having drawn the pin coupling said cars without notifying plaintiff thereof, whereby plaintiff was injured, then the jury will find for plaintiff and assess his damages at such sum not exceeding twenty thousand dollars, as they believe from the whole evidence will compensate him for such injury.”

“3. If the jury find for the plaintiff they should, in estimating his damages, take into consideration the age and situation of the plaintiff, his bodily suffering and mental anguish resulting from the injury received, and the loss sustained by want of the limb injured, and the extent to which he was disabled from making a support for himself by reason of the injury received.”

“4. The jury are instructed that notice to the general superintendent of the railroad company is notice to the company.”

The following instructions were given at defendant's request:

“3. Unless the jury believe from the evidence that the conductor in proof was habitually negligent in the discharge of his duties, and that defendant was guilty of negligence in employing him as conductor, or that the defendant negligently retained him after such carelessness or unfitness became obvious, then they will find for defendant.”

“4. There is no evidence that defendant was guilty of negligence in employing said conductor.”

“6. A single act of negligence does not establish incompetency or by itself have any tendency to do so.”

“8. Unless the conductor in the discharge of his duties as a servant of defendant, owed as a duty, or was required by his duty to defendant, to inform the plaintiff that he had cut off the cars, then the jury will find for the defendant.”

“11. If the jury believe from the evidence that plaintiff, by his own negligence, directly contributed in any degree to the injury sued for, they will find for defendant.”

“12. If the jury believe from the evidence that after the accident in proof at Savannah, the defendant, through its superintendent, investigated said accident and had before him all the persons connected with the train, and the result of said investigation was such that a man of ordinary prudence would not have discharged said conductor, then there is no negligence in defendant retaining said conductor in its employment after said accident.”

“13. The court instructs the jury that there is no evidence in this case that the witness La Brunerie, when he was employed by the defendant as conductor, was not a skilful, careful, competent man, and it devolves upon the plaintiff to affirmatively show to the satisfaction of the jury the fact that he subsequently became habitually negligent, and that defendant was informed thereof, and unless he has done so, they will find for defendant.”

Strong & Mosman for appellant.

(1) The appellant relies on the following points for a reversal of this cause. That plaintiff and La Brunerie were fellow servants will, we think, be conceded. Upon any other theory some of the allegations of the petition would be superfluous. Upon the facts stated the law would hold them fellow servants. McGowan v. Ry. Co., 61 Mo. 528; Price v. H. & St. Jo. Ry. Co., 77 Mo. 508. (2) The petition stated facts which affirmatively showed that the plaintiff had no cause of action in that it averred that the injury was occasioned by an act which did not pertain to the duties of La Brunerie. Osborne v. Ry., 68 Me. 49; Cousin v. Ry. Co., 66 Mo. 572; Sherman v. Ry. Co., 72 Mo. 62; Flower v. Ry. Co., 69 Pa. St. 210; Oxford v. Peler, 28 Ill. 434; Eaton v. D., L. & W. Ry. Co., 13 Am. Law Reg. 665; Snyder v. Ry. Co., 60 Mo. 413; Harper v. Ry. Co., 44 Mo. 488. (3) It failed to state facts sufficient to constitute an action based on the failure of La Brunerie to notify plaintiff that he had pulled the pin. Hayden v. Smithfield Co., 29 Conn. 548; Buffalo v. Holloway, 7 N. Y. 498; Field v. Ry. Co., 76 Mo. 614. (4) There is a total failure of proof. ( a) There is no evidence from which the jury could rationally find that La Brunerie was guilty of any negligence on the occasion of the injury. Brown v. Congress, etc., Ry. Co., 8 Am. & Eng. Ry. Cases, 383; Wyatt Case, 55 Mo. 488; Brown v. H. & St. Jo. Ry. Co., 50 Mo. 467; Railroad Co. v. Jones, 95 U. S. 439; Smith v. H. & St. Jo. Ry. Co., 37 Mo. 292; Mo. Pac. Ry. Co. v. Haley, 25 Kas. 35. ( b) The evidence showed that the alleged negligence causing the injury was of such a character that neither plaintiff nor defendant could by any possibility have any notice or knowledge thereof; one as to which defendant could not be charged with negligence. Both being alike ignorant, there could be no recovery. Hasken v. N. Y. Central Ry. Co., 65 Barb. 129. ( c) It was shown to be a danger which a master could not be said to have subjected his servant to; a danger the master could not foresee, or by any possibility guard his servant against, and which it was only possible to the servant alone to protect himself from. The master not being in fault, the servant could not recover. Gibson Case, 46 Mo. 169; Mo. Pacific Ry. Co. v. Haley's Adm'r, 25 Kas. 57; Davis v. Ry. Co., 20 Mich. 105; Ind., etc., v. Love, 10 Ind. 556; Pittsburg Co. v. Sentmeyer,92 Pa. St. 276; Harper v. Ry. Co., 47 Mo. 577; Elliott v. Ry. Co., 67 Mo. 272; Matthew v. Elevator Co., 59 Mo. 474; Wright v. Centr. Co., 25 N. Y. 571-2. (5) There was a total failure of evidence that La Brunerie was careless, unreliable, and incompetent to discharge the duties of a conductor. Baulec v. N. Y. & Harlem Ry. Co., 5 Lansing 436; C., C. & I. C. Ry. Co. v. Troesch, 57 Ill. 155; Baulec Case, 59 N. Y. 363; Lee v. Detroit Co., 62 Mo. 568. (6) There was no proof, whatever, that the defendant had any notice or knowledge that La Brunerie was careless, unreliable, or incompetent. Baulec Case, 5 Lansing 440; Warner v. Erie Ry. Co., 39 N. Y. 468; C., C. & I. C. v. Troesch, 57 Ill. 155; Baulec v. N. Y. & Harlem Co., 59 N. Y. (356) 363-4; Davis v. Mich. Ry Co., 20 Mich. 105. (7) Conceding that La Brunerie was guilty at Savannah of the acts of negligence charged by Thomas Kane, it affirmatively appears that negligence of the character thus charged and shown had no relation to or connection with the act causing the injury here. Powell v. Mo. Pac. Ry. Co., 76 Mo. 80; Harlan v. Ry. Co., 65 Mo. 22; C., C. & I. C. Ry. Co. v. Troesch, 57 Ill. 155; Wright v. Central Ry. Co., 25 N. Y. 571-2. (8) The court erred in giving and refusing instructions. Yarnall v. Ry. Co., 75 Mo. 575; Goodwin v. Ry. Co., 75 Mo. 73; Bell v. Han. & St. Jo. Ry. Co., 72 Mo. 50.

Woodson & Crosby and B. R. Vineyard for respondent.

(1) “If the defendant was negligent or unmindful of its duty in employing competent and skilful servants in the execution of its business and injury resulted therefrom, it must be held responsible. And of the sufficiency of the proof to sustain this fact, the jury were the proper judges.” Harper v. Railroad, 47 Mo. 579; Harper v. Railroad, 44 Mo. 490. (2) This suit, a judgment having been rendered in the lifetime of the plaintiff, does not abate by reason of his death. Lewis v. Railroad, 59 Mo. 503. And those to whom the judgment was assigned by the original plaintiff, in his lifetime, are the proper ones to be substituted as parties plaintiff in the Supreme Court. R. S., sec. 3671. (3) The defendant is liable in this case for the reason that the conductor was not only shown to have been negligent and unfit for the place he held, but the defendant was shown to have been guilty of negligence in placing him in charge of the train when, from an investigation had a short time before, he was found, by the defendant itself, to be unfit for the position of conductor, and was suspended for two weeks on account of such unfitness. The railroad company may be held responsible for the negligence of an unfit servant, whenever that unfitness is shown to exist for such time and under such circumstances that the managing officers of the company ought to have known of it, or where a specific act has shown such unfitness, and knowledge of that act has been brought to such officers. Ill. Cent. Railroad v. Jewell, 46 Ill. 101; The Tex. Mex. Ry. Co. v. Whitmore, 11 Am. & Eng. Railroad Cases, 195, September, 1883, number; Ry. Co. v. Doyle, 18 Kas. 65-66; The P. & Ft. W. & C. Ry. Co. v. Ruby, 38 Ind. 318; Wabash Ry. Co. v. McDaniels (U. S. Sup. Ct.) 11 Am. & Eng. Ry. Cases, 158, September, 1883, number; Wharton on Negligence, sec. 238.

RAY, J.

This action was begun, and trial had, in the circuit court of Buchanan county, Missouri. The plaintiff, Michael Neilon, was a brakeman employed by the defendant, and at the time of receiving the injuries sued for, was acting as head...