Ostertag v. Union Pacific Railroad Co.
| Decision Date | 25 July 1914 |
| Citation | 169 S.W. 1,261 Mo. 457 |
| Parties | LOUIS H. OSTERTAG v. UNION PACIFIC RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. C. A. Lucas, Judge.
Affirmed (conditionally).
R. W Blair and Watson, Watson & Alford for appellant.
(1) Under the pleadings and evidence the plaintiff was not entitled to recover, and the court should have instructed the jury to return a verdict for defendant. Loring v Railroad, 128 Mo. 349; Clancy v. Railroad, 93 Mo. 433; Evans v. Railroad, 178 Mo. 517; McGrath v. Railroad, 195 Mo. 94; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 444; Degonia v. Railroad, 224 Mo. 590; Rashal v Railroad, 155 S.W. 429; Gabal v. Railroad, 158 S.W. 16; Aerkfetz v. Humphries, 145 U.S. 418; Elliott v. Railroad, 150 U.S. 245; Railroad v. Skiles, 68 Ohio St. 458; Riccio v. Railroad, 189 Mass. 358. (2) Plaintiff's counsel were guilty of misconduct which should reverse this case. Haake v. Milling Co., 153 S.W. 74; Field v. Railroad, 137 F. 14. (3) The verdict is excessive. The injury did not deprive respondent of his ability to do other business and six per cent on $ 15,000 is $ 900 a year and it appeared in evidence he had fitted and wore a wooden leg which enabled him to get around without crutches. Hence he was not wholly but only partially disabled from performing labor and could perform many different kinds of labor with fair remuneration.
Guthrie, Gamble & Street for respondent.
(1) Defendant was guilty of actionable primary negligence. Tetwiler v. Railroad, 242 Mo. 187; Penney v. Stock Yards Co., 212 Mo. 309; Johnson v. Railroad, 203 Mo. 400. The signal of Moore to start the engine was negligence. Seeing the plaintiff, he should have seen that the plaintiff was in the pathway of the engine. It being negligence as to the employees of train 157 to start engine 1241, the injury to plaintiff was actionable on account thereof, although not directly anticipable therefrom. Hoepper v. Hotel Co., 142 Mo. 388; Graney v. Railroad, 140 Mo. 98; Meade v. Railroad, 68 Mo.App. 101; Smith v. Railroad, L. R. 6 C. P. 20; Dixon v. Scott, 181 Ill. 116; 21 Am. and Eng. Ency. Law (2 Ed.), p. 488. (2) The plaintiff was entitled to protection as an employee. Ellsworth v. Metheney, 104 F. 119; Mining Co. v. Schmidt, 104 F. 282; Hammil v. Railroad, 93 Ky. 343; Schumacher v. Breweries Co., 247 Mo. 153; Tetwiler v. Railroad, 242 Mo. 178; Read v. Railroad, 94 Mo.App. 377; Brick Co. v. Fisher, 79 Kan. 576; Sugar Co. v. Riley, 50 Kan. 401; Zinc Co. v. Martin, 93 Va. 491; Wallace v. Oil Co., 66 F. 260; Blovelt v. Sawyer, L. R. 1 K. B. D. (1904) 271; Muller v. Mfg. Co., 99 N.Y.S. 923; Muhlens v. Obermeyr, 82 N.Y.S. 527; Adams v. Wire Co., 78 Mich. 271; Taylor v. Bush & Sons Co., 6 Pa. 306; Willmarth v. Cardoza, 176 F. 1; Railroad v. Oldridge, 33 Tex. Civ. App. 439; Helmke v. Thilmany, 107 Wis. 221; Walbert v. Trexler, 156 Pa. St. 112; Boyle v. Fire-Proofing Co., 182 Mass. 93; Ewald v. Railroad, 70 Wis. 420; Brydon v. Stewart, 2 Macq. (H. L. Cs.) 20; 33 Eng. L. and E. Rep. 1. (3) The question of plaintiff's contributory negligence was for the jury. Contributory negligence is for the jury where there may be an honest difference as to inference of ordinary prudence. Cooley on Torts, p. 802; Powers v. Railroad, 244 Mo. 1; Francis v. Railroad, 127 Mo. 669; Shrank v. Railroad, 159 Mo.App. 299; Bender v. Weber, 138 Mo.App. 544; Day v. Dry Goods Co., 114 Mo.App. 484. It is not necessarily negligence to rely upon signals being given before stationary cars or engines are started. Tetwiler v. Railroad, 242 Mo. 178; Penney v. Stock Yards Co., 212 Mo. 309; Black v. Railroad, 172 Mo. 177; Johnson v. Railroad, 160 Mo.App. 77; Heine v. Railroad, 144 Mo.App. 443; Dunwoody v. Railroad, 136 Mo.App. 515; Wilkins v. Railroad, 101 Mo. 105; Gurley v. Railroad, 104 Mo. 212; Railroad v. Cane, 90 S.W. 1061; Railroad v. Key, 150 Ala. 641; Welch v. Railroad, 176 Mass. 399; Griffin v. Railroad, 148 Mass. 148. Employees are not necessarily negligent in depending upon the observance of usual practices and signals. Although it is ordinarily contributory negligence as a matter of law to step in front of moving cars and engines without looking or listening, even under that strict and universal rule, it becomes a question for the jury when there are circumstances tending to confuse or mislead the plaintiff, or lull his senses into a sense of security. (a) As where plaintiff relies upon the observance of ordinance speeds. Rissler v. Transit Co., 113 Mo.App. 124; Hutchinson v. Railroad, 161 Mo. 246, 3 Syl.; Strauchon v. Met. St. Ry., 232 Mo. 587, 5 Syl. (b) Or an expectation that one train will not approach the junction until another has cleared it. Burbridge v. Cable Co., 36 Mo.App. 670, 7 Syl. (c) Or relies upon approaching trains making customary stops. Percell v. Railroad, 126 Mo.App. 51. (d) Or relies upon customary audible signals being given at specific points. Johnson v. Railroad, 203 Mo. 400. (e) Or relies upon raised crossing gates indicating safe passage. O'Keefe v. Railroad, 108 Mo.App. 184; Palmer v. Railroad, 112 N.Y. 236; Hoelgin v. Railroad, 143 N.C. 96; Roberts v. Railroad, 177 Pa. St. 183; Messenger v. Railroad, 64 A. 682; Railroad v. Shulz, 183 F. 673; Railroad v. Larnard, 161 F. 520. (f) Or relies upon the absence of a watchman who is customarily present when trains are passing. Montgomery v. Railroad, 181 Mo. 500; Railroad v. Amos, 54 Ark. 164; Dolph v. Railroad, 74 Conn. 538, 1 Syl.; Railroad v. Yundt, 78 Ind. 373; Railroad v. Stegenmeier, 108 Ind. 309; Richmond v. Railroad, 87 Mich. 374; Woehrle v. Railroad, 82 Minn. 169; Railroad v. Schneider, 45 Ohio St. 678; Jones v. Rolling Mill Co., 65 Wis. 315. (g) Or relies upon the silence of an automatic electric crossing bell. Tobias v. Railroad, 110 Mich. 440; Kimball v. Friend, 95 Va. 138. (4) No improper evidence was admitted under the facts. (5) The verdict was not excessive. Yost v. Railroad, 245 Mo. 252. (6) There was no misconduct of counsel. The remarks of counsel were justified by the record. State v. Allen, 144 Mo.App. 242; Partello v. Railroad, 240 Mo. 139; State v. Miles, 199 Mo. 553. The question was one for the sound discretion of the trial court, with its better knowledge of the case as a whole. Huckshold v. Railroad, 90 Mo. 559; Gidionsen v. Union Depot Ry. Co., 129 Mo. 402; Wendler v. House Furn. Co., 165 Mo. 542; Malin v. Ins. Co., 105 Mo.App. 643. The proper method for correction of misconduct, if any, is by proper rebuke at the time. State v. Taylor, 134 Mo. 158. Even if there be misconduct, it is incumbent upon the party complaining to point out specifically his objection to the alleged misconduct, and ask a proper rebuke or instruction to the jury. A mere objection is not sufficient. If the objecting party fails to ask for a rebuke or an instruction, or the court fails to sufficiently rebuke or instruct the jury, the objecting party is deemed to have been satisfied and waived complaint in the absence of a final exception to the action or non-action of the court. Dutcher v. Railroad, 241 Mo. 177; Rose v. McCook, 70 Mo.App. 189; Payne v. Railroad, 129 Mo. 404; State v. Gartrell, 171 Mo. 512; Estes v. Railroad, 111 Mo.App. 4; Peck v. Traction Co., 131 Mo.App. 142; State v. Chenault, 212 Mo. 137; Yost v. Railroad, 245 Mo. 151.
This is a suit for damages for personal injuries. The plaintiff recovered a verdict and judgment for $ 15,000.
He was thirty-four years old at the time of the injury, and in good health. He had been in the employ of defendant as a switchman about four years, and had been in railroad work longer. The injury occurred in defendant's freight yards in Kansas City, June 7, 1910, about 6:40 p. m. Plaintiff was one of the crew of engine No. 1241.
The petition alleges the negligence as follows:
"That while such switch engine was stationary and plaintiff was engaged in the act of passing around the end of the same, and in a position of peril from the movement of said engine backward, the said switch engine, in consequence of and through the negligence and mismanagement of the agents, engineers and other employees of the defendant, including the foreman of said switching crew, was suddenly, swiftly and violently moved backward, toward and against the plaintiff; and said agents, engineers and other employees, including the foreman of said switching crew, negligently failed to give any warning to the plaintiff, as due care required them to do, of such movement of such engine."
It alleges the loss of his left leg about half way between the knee and hip, and that he was earning one hundred dollars a month, and prays for $ 25,000 damages.
The answer contained a general denial, a plea of contributory negligence and an allegation that under the law of Kansas the plaintiff assumed the risk. The reply is a general denial.
Tracks four and five in the defendant's yards running parallel from east to west are connected at the west by a switch, from which the track continues west. On the south side of the track and two or three hundred feet west of that switch was the "shanty" or office where the defendant's employees went to get and give orders and reports. Freight train No. 157, containing about fifty cars, was on track four. The road engine was coupled to the west end of that train and headed west. In front of the road engine was coupled the helper engine reversed, i. e., with its head to the east. It was there for the purpose of helping the train start westward on an upgrade. South of that train was engine 1241 on track five. It was coupled to its tank or tender, but not to any cars. The plaintiff was in the cab of his engine at the time it arrived near the...
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