Oglesby v. Missouri P. Ry. Co.

• Decision Date: 01 December 1896
• Citation: 37 S.W. 829
• Parties: OGLESBY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

37 S.W. 829

OGLESBY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri

December 1, 1896

In banc. Appeal from circuit court, Bates county; James H. Lay Judge.

Action by Henry R. Oglesby against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Sherwood, J., dissenting.

R. T Railway, for appellant.

O. L Houts, for respondent.

OPINION

MACFARLANE, J.

This is an action for damages on account of personal injuries received by plaintiff while serving defendant as a brakeman on one of its freight trains. The negligence charged is that of placing in the train a loaded car which was worn, defective, out of repair, and unfit for service. The damage was caused, as alleged, by the breaking of said car, whereby the train was wrecked. The answer was a general denial. A trial resulted in a verdict and judgment for plaintiff for $15,000, and defendant appealed.

The evidence discloses these facts: The car in question is what is known as a "Union Line Car," and did not belong to defendant. It was built by the United States Rolling-Stock Company for the Pennsylvania Company, in December, 1886, was marked "U. L.," and numbered 7,919. It was built of good materials, according to proper plans and specifications, and was marked as having a capacity of 60,000 pounds. On December 7, 1892, the car came into defendant’s possession in St. Louis, loaded with 31,800 pounds of nails, and, so loaded, was hauled over its road to Atchison, Kan., where it was unloaded, and remained until December 10th, when it as loaded with 30,000 pounds of flour, to be carried to St. Louis. The car was inspected at Atchison, and no defects were noted by the registry of the inspection. So loaded, the car was carried to Kansas City, where it was again inspected, and no defects were noted. On the 11th of December the car was put into a St. Louis train. The train consisted of 18 loaded cars, No. 7,919 being placed next the engine. Plaintiff was a brakeman on this train. While descending a grade east of Independence, about 14 of the cars were thrown from the track, and plaintiff, who was on top of one of them at the time, was badly injured. The court gave two instructions at the request of plaintiff, and all asked by defendant except those in the nature of demurrers to the evidence. Defendant insists that the evidence was not sufficient to authorize the verdict, that the damage awarded was excessive, and that the court erroneously instructed the jury in respect to the measure of damages. The evidence will be given more in detail in discussion of the points involved.

1. In the first place, it is insisted that the evidence of negligence on the part of defendant was insufficient to take the case to the jury. In other words, that car 7,919 was not shown to be defective, and, if it was unsafe, proper care to discover the defect was conclusively shown. Defendant’s evidence shows that the car was built in 1886, of good materials, and according to proper plans and specifications. It was repaired and strengthened in February, 1891. The average life of such a car is 15 years. Within a week before the accident it was hauled from St. Louis to Atchison, Kan., carrying 31,800 pounds of nails. It was carefully inspected both at Atchison and Kansas City. A record was kept by these inspectors of all defects found, and no defect in this car was noted. No one testified that a defect had been noticed before the accident. On the other hand, the evidence of plaintiff tended to prove that the car was examined after the wreck, and it was found broken in two about one-third back from the front end; the break in the sills was square off, without splitting; that the sills of the car were doted, worm-eaten, and rotten, and their condition was manifest to any one making an examination. This evidence tended to prove not only that the car was defective and unsafe, but that its condition would have been known by proper inspection, if the evidence is true,-which was a question for the jury,-then defendant neglected the duty it owed plaintiff in respect to the care required in furnishing safe and suitable cars.

2. But, in order for plaintiff to recover, it was necessary for him to prove, not only that a defective car was negligently placed in the train, but that his injury was caused thereby. To show this, the burden of proof was still on plaintiff. The fact must have been shown by evidence, and not left to mere conjecture. The facts attending the disaster are established by evidence in which there is no substantial conflict. The cause is not conclusively established by positive evidence, but is left largely to inference from the facts that are proved. The train contained 18 loaded cars, the car in question being next the engine. The roadbed and track were in good condition. The train was running down a grade, on which there were curves in the track, at a rate of from 20 to 25 miles per hour. After the accident it was found that car 7,919 was broken in two about one-third distance from the forward end. The part broken off was still attached to the engine. The link and pin coupling it to the engine was twisted and bent. Two wheels of the engine were off the track. Nine or ten of the other cars went off the track, and were piled upon the car in question. Some of these were also badly broken up. The end of the car where broken had fallen upon the track and plowed into the ground and track. The iron rods which pass under the car had pulled out through the timbers in which they were fastened, and were still attached to that part of the car remaining with the engine. These were the physical facts and conditions, about which there is no dispute. Now, as to the evidence of eyewitnesses. Plaintiff testified that he was on top of the train, with his face towards the rear end. He thought the train was running too fast, and that "we were going in the ditch." William Rast, fireman, testified: "Well, the first thing I observed was that the tender was off the track, and I started to get off, and just as I started to get off everything stopped, and I seen the cars piled up behind us; and I naturally thought somebody was hurt, and started back there to see." Kellar, a brakeman testified: "The car next the engine was the first I saw off the track. The damage was done after it left the track. The car was whole when it left the track." Albert Hesler testified:

"Q. What was the first thing you heard or observed out of the ordinary line?

A. First thing I observed was a car going down.

Q. What car went down first?

A. The head car.

Q. That was the one next to the engine?

A. Yes, sir.

Q. Then the others commenced going down and going off the track in the order from that car back; that is right, is it?

A. Yes, sir." William Donnelly, the engineer, testified:

"Q. What was the first intimation at the time of the train leaving the track?

A. A sudden crash right behind the engine. The engine jumped the track. I don’t know whether she jumped the track or the car jumped the track first or not.

Q. I understand you to say you heard a sudden crash?

A. Yes, sir.

Q. And immediately the engine left the track?

A. I couldn’t say positively immediately, but somewhere right after that."

The conductor gave it as his opinion that a car in the middle of the train going off the track would not pull the engine off and that it was possible that the breaking of this car was caused by the wreck itself,-by the other cars falling on it. Defendant’s counsel...