Nivert v. Wabash R. Co.

• Decision Date: 28 February 1911
• Citation: 232 Mo. 626,135 S.W. 33
• Parties: NIVERT v. WABASH R. CO.
• Court: Missouri Supreme Court

135 S.W. 33

232 Mo. 626

NIVERT v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. APPEAL AND ERROR (§ 105)—JUDGMENTS APPEALABLE—REFUSAL TO SET ASIDE INVOLUNTARY NONSUIT.

A plaintiff who, on the court sustaining an objection to any evidence on the ground that the petition does not state a cause of action, takes a nonsuit takes an involuntary nonsuit, and a judgment refusing to set it aside is appealable.

2. NEGLIGENCE (§ 83)—"HUMANITARIAN DOCTRINE."

The "humanitarian doctrine" is bottomed on the theory that plaintiff was at the time of the injury negligent, but that defendant by the exercise of ordinary care could have prevented the injury, but failed to do so.

3. NEGLIGENCE (§ 80)—CONTRIBUTORY NEGLIGENCE.

At common law the contributory negligence of plaintiff bars a recovery for his injuries.

4. MASTER AND SERVANT (§ 137)—OBLIGATION OF MASTER—LOOKOUT FOR EMPLOYÉS ON TRACK.

Trainmen, in the absence of a rule or custom, owe no duty to look out for the safety of section hands, who are presumed to be familiar with the character of their employment, the schedules of trains, and the dangers incident to the employment.

5. MASTER AND SERVANT (§ 260)—PLEADING —NEGATIVING ASSUMPTION OF RISK.

A petition, in an action for injuries to a section hand struck by a train, which alleges that plaintiff was engaged in tightening a bolt in a track on a trestle at a point from which he could be seen by trainmen for half a mile, that the trainmen saw, or by the exercise of ordinary care could have seen, his perilous position in time to have prevented the train striking him, but they negligently failed to do so, and that he relied on the trainmen to perform the duty they owed him of warning him on the approach of the train, states no cause of action, because it shows that plaintiff voluntarily assumed a perilous position, and relied on the trainmen to discover his peril and avoid injuring him when they owed him no duty.

6. PLEADING (§ 8)—CONCLUSIONS.

In an action for injuries to a section hand, an allegation in the petition that it was the duty of the employés in charge of the train that struck him to warn him of the train's approach was a mere conclusion of law.

Lamm and Graves, JJ., dissenting in part.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Chris Nivert against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff instituted this suit in the circuit court of Chariton county against the defendant to recover the sum of $20,000 damages for personal injuries sustained by him in consequence of the alleged negligence of the defendant, and a change of venue was taken to the circuit court of Saline county.

The amended petition filed in the cause (formal parts omitted) was as follows:

"Plaintiff states that the defendant is and was at all the dates set forth in this petition a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, with capacity to sue and be sued, and at all of said dates owned and operated a line of railway running west from the city of Salisbury in Chariton county, Mo., with its engines and cars thereon.

"Plaintiff further states that on the 21st day of November, 1906, he was, and for a long time prior thereto had been, in the employ of the defendant in the capacity of a section hand; that as such employé it became and was the duty of plaintiff to go, under the direction of defendant's foreman, upon the tracks, trestles, and bridges along defendant's right of way, inspect the same, and to make such repairs thereon as might be necessary to insure the safety and security of the trains of the defendant, the employés and agents in charge, and the passengers thereon.

"Plaintiff for cause of action states that on said November 21, 1906, while in the employ of defendant as aforesaid, he was ordered and directed by the foreman having charge of that part of defendant's track extending west from the city of Salisbury (and being that particular foreman under whom plaintiff was assigned to work) to go upon and along the track of defendant extending west from the city of Salisbury, and inspect the same and make such repairs as might be necessary to said track and the trestles and bridges thereunder.

"Plaintiff further states that at a point about three miles west of the city of Salisbury in said county of Chariton, along the line of defendant's line of railway is a long trestle numbered by defendant No. 465, which trestle spans a ravine and is in length about 75 feet and in width about 10 feet and in height about 15 feet; that at a point about 600 feet east of said trestle is a public highway crossing over defendant's tracks and right of way; that defendant's tracks from said trestle extending east for more than a mile are level, straight, and the track and right of way free from any and all obstructions that would shut out from the view of defendant's employés, operating its said cars as they approached said trestle from the east, said trestle, or persons who might be thereupon.

"Plaintiff further states that on said November 21, 1906, in the course of his inspection of said track he reached the trestle aforesaid; that upon said trestle and in about the center thereof he found loose joints, caused by the bolts and clamps connecting the rails of the track becoming loose, a part of the bolts having fallen out, and said track at said point, by reason thereof, is in a very dangerous and defective condition; that plaintiff, in his efforts to repair and make safe said defect, while upon and in the middle of said trestle in a dangerous and perilous position, in full view of the servants of defendant in charge of its train approaching from the east at that time, and while in the exercise of due care and caution on his part and relying upon the defendant, its agents and servants in charge of its trains, to do and perform the duty they owed him of warning him of the approach of said train, was struck and knocked from said trestle to the ground, the distance of 15 feet, by the engine and freight cars of defendant composing its train No. 91, west-bound; that plaintiff for the distance of more than one-half mile to the east of said trestle was in full view of the servants and agents of defendant in charge of said train, with ample time and opportunity on their part to have warned plaintiff of the approach of said train and put the same under control; that plaintiff in said perilous position was seen by the agents and servants of defendant in charge of said train, or by the exercise of ordinary care on their part would have been seen by them, for the distance of more than one-half mile to the east of said trestle.

"Plaintiff says that, notwithstanding the public road crossing immediately east of said trestle and the duty of the defendant to warn plaintiff of the approach of said train, they carelessly and negligently ran over said crossing onto said trestle and upon and against plaintiff without ringing the bell, sounding the whistle, or giving any warning whatever of their approach to said crossing, the trestle, or plaintiff.

"Plaintiff says that by reason of being struck by said engine and thrown from said trestle he was wounded, maimed, and mangled; his shoulder, breast bone, and several ribs fractured, and his shoulder and chest crushed, besides many bruises and cuts in and upon his body; that his injuries were of such a character as to render him unconscious, in which condition he remained several days.

"Plaintiff says that because of the injuries received by him, and due solely to the negligence and carelessness of the defendant, its agents and servants as herein alleged, he suffered intense pain for many weeks; that he now suffers and will continue to suffer the same during his natural life; that he was confined to his bed and room for many weeks, thereby entailing upon plaintiff a heavy loss of time and earnings; that because of said injuries plaintiff has expended large sums of money, and has contracted to pay large sums of money on account thereof, for medicines and medical attention; that prior to said injuries plaintiff was an able-bodied man and capable of doing a man's work; that since said injuries, and because thereof, plaintiff's health has become permanently broken and destroyed, his earning capacity impaired, and plaintiff rendered a permanent and helpless invalid and cripple for life.

"Wherefore plaintiff prays judgment against defendant in the sum of $20,000, and for all proper relief."

The answer was as follows: "Now comes defendant and for its answer to plaintiff's first amended petition denies each and every allegation thereof, and further answering defendant says that if the said plaintiff was injured at all it was the result of his own negligence directly contributing thereto in remaining upon and near the tracks of the defendant in close proximity to a rapidly approaching train of cars upon defendant's railroad, when he saw, or by the exercise of ordinary care could have seen, said train, and, having fully answered, defendant prays to be discharged with its costs."

The reply was a general denial.

On January 16, 1908, after both parties had announced ready for trial, and a jury having been called and qualified to try the cause, the pleading read, and statements made, counsel for the defendant objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action. This objection was by the court sustained, and the following judgment was rendered, to wit: "And now this cause coming on to be heard, come both the plaintiff and defendant, and both parties hereto announcing ready for trial, the following jury is called to try this cause, to wit: G. T. Stone, J. M. Dutrett, C. C. Young, E. A. Barksdale, A. R. Brightwell, August Rehkop, H. G. White, Geo. T. Lyons, ...