Patrum v. St. Louis & San Francisco Railroad Co.
| Decision Date | 23 June 1914 |
| Citation | 168 S.W. 622,259 Mo. 109 |
| Parties | PAUL U. PATRUM et al. v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Christian Circuit Court. -- Hon. John T. Moore, Judge.
Reversed.
W. F Evans and John H. Lucas for appellant.
(1) The defendant insists that neither in pleading nor in proof can the plaintiffs recover, hence the court committed error in submitting the cause to the jury. Harrington v Railroad, 104 Mo.App. 671; Shields v. Railroad, 100 Mo.App. 517; Williams v. Railroad, 119 Mo. 316; Hager v. Railroad, 207 Mo. 302; McIntosh v Railroad, 58 Mo.App. 285; Jackson v. Railroad, 104 Mo. 448; Bradley v. Railroad, 138 Mo. 302; Saxton v. Railroad, 98 Mo.App. 494; Ryan v. McCully, 123 Mo. 636; Yarnal v. Railroad, 75 Mo. 575; Keown v. Railroad, 141 Mo. 86; Maher v. Railroad, 64 Mo. 267. (2) Instruction A, given by the court of its own motion tells the jury that plaintiffs can recover notwithstanding the exercise of ordinary care by defendant. Porter v. Railroad, 199 Mo. 82; Vermillion v. Parsons, 118 Mo.App. 260; Pim v. Transit Co., 108 Mo.App. 713; Behen v. Transit Co., 186 Mo. 430. (3) If the cars were handled in the ordinary and usual manner, then there was no negligence. Peck v. Transit Co., 178 Mo. 617. There was no evidence that the cars were negligently handled and the court should have so declared. Reno v. Railroad, 180 Mo. 469; Henselman v. Railroad, 88 Mo.App. 123. If the death was the result of an accident, there could be no recovery, and the court should have so declared. Peck v. Transit Co., 178 Mo. 617.
Patterson & Patterson, G. A. Watson and G. D. Kirby for respondents.
(1) The petition is substantially sufficient. (a) The charge of negligence is sufficiently specific -- especially after verdict. Even a general averment of negligence is good after verdict. Tachner v. Express Co., 72 Mo.App. 13; Clem v. Railroad, 119 Mo.App. 245; Howell v. Mode, 111 S.W. 641. (b) Even if it were proper to charge that the car was struck with unusual or extraordinary force this allegation is necessarily implied and the defect is cured by the verdict in plaintiff's favor. Dodge v. Coal & Coke Co., 115 Mo.App. 501. (2) The question of negligence was one for the jury -- where reasonable men may differ upon a given state of facts the question of negligence is one for the jury. Nagel v. Railroad, 75 Mo. 653; Manerman v. Siemerts, 71 Mo. 101; Hulin v. Railroad, 92 Mo. 440; O'Mellia v. Railroad, 115 Mo. 205. There being substantial evidence to support the verdict, the appellate court should not disturb the finding and the evidence should be viewed in its most favorable aspect in support of the verdict. Cimliff v. Hansman, 97 Mo.App. 467; Land & Lumber Co. v. Tie Co., 79 Mo.App. 543; Sinclair v. Railroad, 70 Mo.App. 588; Winters v. Railroad, 99 Mo. 509; Memphis v. Mathews, 28 Mo. 248; Lyman v. Harvester Co., 68 Mo.App. 637; Phippin v. Railroad, 196 Mo. 321; Cohn v. Kansas City, 108 Mo. 387; Stoddard v. Railroad, 65 Mo. 514; Parsons v. Mayfield, 73 Mo.App. 309; Huth v. Dohle, 76 Mo.App. 671; Choquette v. Railroad, 152 Mo. 257; Dowling v. Wheeler, 117 Mo.App. 169; Shoe Co. v. Sally, 114 Mo.App. 222; Levels v. Railroad, 196 Mo. 606; Little v. Pump Co., 122 Mo.App. 620; Smoot v. Kansas City, 194 Mo. 573; Treffinger v. Railroad, 110 Mo.App. 453. The question of the weight of the evidence was for the jury and the trial court. Conrad v. Railroad, 116 Mo.App. 517; Hurley v. Railroad, 120 Mo.App. 262; Bretzfelder v. Waddle, 122 Mo.App. 262; Gorton v. Ins. Co., 115 Mo.App. 69. It is only when the appellate court is convinced that the verdict is the result of prejudice or passion that it will interfere. Franklin v. Railroad, 188 Mo. 533. The fact that the preponderance of the evidence is against the verdict furnishes no foundation for the charge that the verdict is the result of prejudice or passion. Hirsh v. Grand Lodge, 78 Mo.App. 358; Harrison v. Lakenan, 189 Mo. 581; Investment Co. v. St. Joseph, 191 Mo. 459. The jury are at liberty to disregard the testimony of several witnesses even when uncontradicted. Roos v. Clark, 14 Mo.App. 594; Gregory v. Chambers, 7 Mo.App. 557; Clark v. Skrimski, 77 Mo.App. 172; Tower v. Panley, 76 Mo.App. 287; Wolff v. Campbell, 110 Mo. 114. Where the testimony of witnesses conflicts with the physical facts and the common observation of men, the testimony must yield and need not be accepted as the basis of a verdict. Phippin v. Railroad, 196 Mo. 321; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362. (3) The charge of negligence was supported by the evidence. The defendant owed to plaintiff the exercise of due care and the failure to use such care constituted negligence. Negligence is the absence of due care and due care is care adjusting itself to the circumstances of the case. Dean v. Railroad, 199 Mo. 386; Wharton on Negligence (2 Ed.), sec. 3; McMahon v. Express Co., 132 Mo. 641; Wilkinson v. Railroad, 101 Mo. 93; Webb's Pollock on Torts (En. Am. Ed.), p. 112 et seq. There is an implied agreement on the part of the master when it employs the servant and puts him at a dangerous place to work, that it will use reasonable care to protect him. Brady v. Railroad, 135 Mo. 393. (4) The servant never assumes the risk of his master's negligence. Phippin v. Railroad, 196 Mo. 321. If ordinary care would have prevented the injury the risk is not assumed. Blanton v. Dold, 109 Mo. 64. The only risks which the servant assumes are those which remain after the master has exercised ordinary care. Charlton v. Railroad, 200 Mo. 413. Nor does the servant assume the risk of dangers arising from the negligence of the master in furnishing defective appliances by continuing the service after he is advised of it. Pauck v. Beef & Provisions Co., 159 Mo. 477; Settle v. Railroad, 127 Mo. 336. When the work requires men to do it then the men are classed as appliances. Thorpe v. Railroad, 89 Mo. 663; Haviland v. Railroad, 172 Mo. 112. The servant assumes the risk of every danger arising from the work itself, but if the master's negligence aggravates the danger the servant may recover. Nash v. Dowling, 93 Mo.App. 156; Parsons v. Packing Co., 96 Mo.App. 381.
Plaintiffs, as the minor children of Henry A. Patrum, a brakeman on a freight train, employed and killed by defendant while in the line of duty, sue for his death.
Deceased, a widower, 43 years old, long in service as a railroad man and experienced in the work and duties of a brakeman, was killed at Mansfield, Missouri, on the tenth day of August, 1906. Plaintiffs had a verdict for $ 5000 damages, but thereof entered a remittitur for $ 500 and had judgment for $ 4500, from which the defendant in the usual way appealed to the St. Louis Court of Appeals. Territorial jurisdiction being shifted by legislative enactment, the case in the course of time came to the Springfield Court of Appeals, wherein Judge Cox, having disqualified himself for that he had sat therein nisi, and Judges Gray and Nixon being unable to agree, the Hon. V. O. Coltrane, a well-known and able member of the Springfield bar, was agreed on by stipulation as special judge and as such rendered an opinion herein affirming the case. In this opinion of affirmance Judge Gray concurred, but Judge Nixon dissented, and deeming the views expressed in conflict with the holdings of this court and of the other courts of appeals, requested that the case be sent here, which was accordingly done.
The specific allegation of negligence as pleaded in the case, coupled with a general statement of the facts, is thus stated in the petition:
"That said Patrum in the performance of his duty, and while in the line of his work as such brakeman, climbed upon said rear car for the purpose of setting the brake thereon and stopping said car; that while he was so engaged, and while he was on the top of said car setting said brake, the agents, servants and employees of defendant engaged with him in handling said engine and cars, they then knowing that the said Patrum was in such position and so engaged, negligently and carelessly drove said engine against the other of said cars which were between the engine and the car on which the said Patrum then was as above stated, with such force as to drive said car against the car on which the said Patrum was engaged in setting the brake; that the impact of said cars so driven together was so sudden, forceful and violent that as a result thereof the said Patrum was thrown from said car to the track, one of said cars passing over his body, so injuring him that as a result thereof, he died."
The answer was a general denial; the defense was the assumption of risk; of which more anon.
The facts in brief as developed by the testimony offered by plaintiffs (the defendant offered none, merely contenting itself with demurring to that offered by plaintiffs), are about as follows: There are at Mansfield on defendant's line of railroad, three tracks, called in the record the "main track," "passing track" and "stock track." The train on which Henry A. Patrum (hereafter for brevity called the deceased), was employed as a brakeman, stopped on the day that he was killed, on the passing track, for the purpose, among others, perhaps, not here pertinent, of picking up a stock car loaded with hogs belonging to one W. J. Tripp. The engine was cut off from its train and run over to the north end of the stock track for the purpose of doing the switching made necessary in coupling on to and in picking up the carload of hogs. There was upon the stock track, besides the carload of hogs, at least one other car which was empty. By large inference other cars were thereon, but whether there were or not,...
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