Oglesby v. Missouri Pac. Ry. Co.

• Decision Date: 15 June 1903
• Citation: 76 S.W. 623,177 Mo. 272
• Court: Missouri Supreme Court
• Parties: OGLESBY v. MISSOURI PAC. RY. CO.<SMALL><SUP>*</SUP></SMALL>

76 S.W. 623

177 Mo. 272

OGLESBY v. MISSOURI PAC. RY. CO.^*

Supreme Court of Missouri.

June 15, 1903.

MASTER AND SERVANT—INJURY TO BRAKEMAN—CAUSE OF WRECK—EVIDENCE FROM CONDITIONS—PRESUMPTION OF NEGLIGENCE —APPLICABILITY—SUBMISSION OF CASE TO JURY—DEMURRER TO EVIDENCE—WAIVER.

1. Where a defendant, after his demurrer to plaintiff's evidence is overruled, introduces evidence of his own, the propriety of the submission of the case to the jury will be determined on the whole case.

2. Evidence in an action by a brakeman for injuries sustained in a wreck alleged to have been caused by a defective car held to sustain a finding that the car was in fact defective.

3. In determining, from the subsequent situation and condition of the train and track, the

cause of a railroad wreck, all the circumstances must be looked to; and, if they indicate a cause different from that alleged by a brakeman suing for injuries, the case should be withdrawn from the jury, though the condition of a particular car tends to support plaintiff's theory.

4. The prima facie case of negligence occasioning a railroad wreck which would be made in favor of a passenger by the fact of the wreck, and proof of a defect in a car, does not exist in favor of a brakeman who was one of the train crew, but he will be required to prove the precise cause of the accident.

5. Evidence in a brakeman's action for injuries sustained in a railroad wreck held insufficient to warrant submitting to the jury the issue as to the cause of the accident.

Brace, Gantt, and Valliant, JJ., dissenting.

In Banc. Appeal from Circuit Court, Pettis County; Geo. H. Longan, Judge.

Action by Henry R. Oglesby against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Martin L. Clardy and R. T. Railey, for appellant. O. L. Houts, for respondent.

ROBINSON, C. J.

This is an action for damages growing out of injuries received by plaintiff in December, 1892, while in the employ of defendant railway company as a brakeman on one of its freight trains running between Kansas City and St. Louis. The contest between the parties hereto has had quite a long and eventful history. In a former suit between the same parties growing out of the same occurrence the case came here then, as now, on defendant's appeal from a judgment in favor of plaintiff, at which time opinions by four members of this court were written. When the judgment in that suit (Oglesby v. Mo. Pac. Ry. Co., 150 Mo. 137, 37 S. W. 829, 51 S. W. 758) was reversed and remanded as the result of the diverse views expressed by the different members of the court, and the cause was returned to the circuit court of Bates county for rehearing, plaintiff dismissed that suit, and began anew in his home county of Johnson the present suit; this last action, however, differing from the first in this particular only: that now no act of negligence is charged to defendant on account of the rapid rate of speed of the train at the time plaintiff received his injuries, as was done in plaintiff's former petition filed; but the absence of that averment from the present petition makes the consideration of the effect of the existence of that fact, in so far as it has been given as plaintiff's version of the cause of the wreck that resulted in his injury, of no less consequence than it was at the former hearing of the original suit, when that allegation of negligence was contained. In the present action the grounds of negligence charged are "that defendant negligently furnished and placed, and allowed to be placed, operated, and used in said train at said time on said trip a car numbered 7,919, with the initials `U. L.' thereon, which was at the time unfit for service, unsafe, old, worn, and out of repair, and the timbers of which were decayed and rotten, worm-eaten and doty; that at the time the defendant knew, and by the exercise of ordinary care and prudence might have known, of the condition of said car, and that it was unsafe, unfit for service, out of repair, old, worn, rotten, decayed, worm-eaten, and doty; that at said time, on the said 11th day of December, 1892, by reason of the old, worn, decayed, rotten, worm-eaten, doty, and unsafe condition of said car, and because the same was out of repair as aforesaid, and while said train and cars were being operated by defendant as aforesaid on its said line of railway at a point west of what is called `Little Blue Switch,' in Jackson county, Mo., the said car broke, and the said cars and train were wrecked and thrown from the track, and plaintiff, by reason thereof, and while in the line of his duty as brakeman on said train, in the employ of defendant, as aforesaid, and without fault on his part, was then and there thrown to the ground and track, and the cars thrown upon him, by reason of which his right leg was crushed," etc.

On the appeal in this case, as when the case was here before, the controlling controversy is over the question whether, upon all the facts developed, the case should have been submitted to the jury. Other minor questions have been presented by the defendant on this appeal, but as none of them, in our judgment, are sufficient to effect a reversal of the judgment found, if that judgment is predicated upon facts from which the jury had the right to make a determination, they need not be mentioned.

What, then, are the facts of the case, as shown and established by all the witnesses? Though the defendant offered a demurrer to the testimony at the close of plaintiff's case, when that demurrer was overruled it did not choose to stand thereon, but gave to the court and the jury its testimony, and we must consider it now along with that of the plaintiff's as one whole; and if, from all the facts shown, the case was one to go to the jury, it is not the province of this court, on appeal, to interfere therewith, or to disturb the judgment based thereon.

The testimony on part of plaintiff tended to show that this "U. L. car" left Kansas City, loaded with 30,000 pounds of flour on the morning of December 11, 1892, in a train of 18 cars, bound for St. Louis; that this U. L. car was the first car of the train, and was fastened to the rear end of the tender by means of an iron link and pin; that plaintiff was the forward one of three brakemen in charge of the train, and that his position at the time of the wreck was upon the fifth car from the engine that was used to pull the train; that when the train reached a point near what is called "Little Blue Switch," in Jackson county, about seven miles out from Independence, while running down a steep grade on the road and around a sharp curve, it was wrecked, and plaintiff was found under the car upon which he was riding, with his right leg broken and crushed, and otherwise bruised and mangled. Plaintiff's testimony tended to show that this U. L. car, as it is called, was old, and that its longitudinal sills were rotten, worm-eaten, and doty, and, when observed after the wreck, they were found to have been broken square in two about ten feet back from the forward end of the car. The testimony on part of defendant tended to show that this U. L. car was sound, in good condition, and comparatively new; that it was built to carry 60,000 pounds, while at the time of the wreck it was carrying only 30,000 pounds of barreled flour; that it had been inspected at Atchison, Kan., and at Kansas City, Mo., and that no defects were noticed; and that at the time of the accident the train was not running more than 20 or 25 miles an hour. It was stipulated by the parties that this U. L. car was received in Atchison, Kan., December 5, 1892, having come over defendant's road from St. Louis loaded with 31,000 pounds of nails, and that it remained in Atchison on defendant's premises, unloaded, until December 10, 1892.

While in general the testimony in the present case is substantially as it was on the former appeal of the case between the same parties (150 Mo. 137, 37 S. W. 829, 51 S. W. 758), and the statement of the facts on the former appeal might have been adopted as the statement of the facts of this case, in so far as they went, a few new facts were brought out at the present hearing, and the testimony of several witnesses called by plaintiff was developed with more distinctiveness upon the question as to the character and extent of the defects appearing in the broken sills of this U. L. car, as it is called, which will be noted below.

Of the new facts brought out in the present case that were not made to appear when the case was here on its first hearing, one was that this U. L. car was observed to be sagged in the center some two or three inches as it passed Independence Station, a distance of six or seven miles from where the train in which it was hauled was wrecked a few minutes afterwards. Several witnesses—some called by the plaintiff, and one called by the defendant—in answer to the question what this sagging of a car in the center two or three inches would indicate, also gave it as their opinion that such a condition would indicate that the car was weak in some of its parts, and that it needed to be repaired. Two witnesses, fellow brakemen on the train with plaintiff at the time of the accident, and the only eyewitnesses to the occurrence of the event, who testified at the trial as to the condition of this car immediately preceding and at the time of the wreck—one testifying in behalf of plaintiff, and the other called by defendant—said that this U. L. car was yet whole after it had left or jumped the tracks, and was running upon the ties of the roadbed before it turned over or broke down upon the track. There was also testimony at this, as at the other trial of the case, showing that one or more of the steel or iron rails of this track were discovered to be broken in two and very badly out of shape and bent when the wreck was viewed, and that the track generally under the wreck was badly torn up...