Pratt v. Missouri Pac. Ry. Co.

• Decision Date: 15 November 1909
• Citation: 122 S.W. 1125,139 Mo. App. 502
• Parties: PRATT v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

122 S.W. 1125

139 Mo. App. 502

PRATT v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

November 15, 1909.

Rehearing Denied December 6, 1909.

1. NEGLIGENCE (§ 121) — EVIDENCE — PRESUMPTIONS.

Where an accident proceeds from an act of such a character that when due care is taken in its performance no injury ordinarily ensues from it in similar cases, it will be presumed to be "negligent."

2. MASTER AND SERVANT (§ 139) — DEATH OF SERVANT — PROXIMATE CAUSE.

A switchman, engaged as a brakeman on a loaded coal car that was being switched to a side track, was killed by the car colliding with a car on the main track. The accident occurred on a stormy night. The brakeman in charge of the other car left it on the track without a light and without notifying a fellow workman charged with the duty of signaling the engineer. The fellow workman could have prevented by proper care the coal car from being sent forward, or could have given decedent a lantern signal to stop the car before the accident. Held, that the proximate cause of the accident was the negligence of the brakeman in leaving his car without light and without notifying the fellow workman thereof, and the negligence of the fellow workman failing to take steps to prevent the accident.

3. MASTER AND SERVANT (§ 203) — ASSUMPTION OF RISK.

A servant does not assume risks created by the negligence of his master.

4. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANTS — CONTRIBUTORY NEGLIGENCE — QUESTIONS FOR JURY.

Whether a switchman killed, while engaged as a brakeman on a loaded coal car in a collision with another car, was guilty of contributory negligence, held, under the evidence, for the jury.

5. MASTER AND SERVANT (§ 180) — INJURY TO SERVANT — FELLOW SERVANTS — LIABILITY — "RUNNING, CONDUCTING, OR MANAGING ANY LOCOMOTIVE, CAR, OR TRAIN OF CARS."

Rev. St. 1899, § 2864, as amended by Laws 1905, p. 135 (Ann. St. 1906, p. 1637), making a railroad liable for the death of an employé occasioned by the negligence of another employé, while "running, conducting, or managing any locomotive, car, or train of cars," etc., covers the operation of cars at terminal yards, and the death of an employé of a railroad engaged as a brakeman on a loaded coal car while being shunted from a main switch track in a terminal yard to a side track, caused by the negligence of fellow servants in the moving of cars and the giving of signals, resulted from the negligence of an employé within the statute.

6. MASTER AND SERVANT (§ 179) — FELLOW-SERVANT STATUTE — CONSTRUCTION.

The fellow-servant statute is remedial in its nature, and the court must give to it such an interpretation as will best realize the purposes of the Legislature to afford employés, working in dangerous positions and exposed to unusual hazards, protection.

7. DEATH (§ 31) — ACTION FOR DEATH — PARTY ENTITLED TO SUE.

Under Rev. St. 1899, § 2864, as amended by Laws 1905, p. 135 (Ann. St. 1906, p. 1637), authorizing a recovery by the administrator of decedent leaving no husband, wife, or minor child, the administrator may sue for the negligent death of one of mature age, unmarried, and childless.

8. EVIDENCE (§ 174) — MEMORANDA — ADMISSIBILITY.

A record book kept by a railroad, showing the names of employés in a railroad yard, compiled from time slips made in the yard by an employé required to keep the time of the employés in the yard, is inadmissible, where the time slips were admitted in evidence.

9. APPEAL AND ERROR (§ 882) — INVITED ERROR — RIGHT TO COMPLAIN.

While a defendant, who is driven by adverse rulings of the court to contest a false issue, is not precluded, on preserving his exceptions, from availing himself in the appellate court of the error, yet a defendant who voluntarily accepts a false issue tendered by his adversary may not complain after he is defeated on such issue.

10. APPEAL AND ERROR (§ 882) — INVITED ERROR — RIGHT TO COMPLAIN.

Where, in an action for negligent death, brought under Rev. St. 1899, § 2864, as amended by Laws 1905, p. 135 (Ann. St. 1906, p. 1637), plaintiff without objection proved the earning capacity of decedent and the dependency of his mother on him for support, and defendant on cross-examination attempted to show that decedent was not industrious, but idled away much of his time, defendant could not complain that plaintiff was permitted to show the pecuniary value of the life of decedent to those dependent on him.

11. TRIAL (§ 105) — EVIDENCE — FAILURE TO OBJECT — INSTRUCTIONS.

The court must in its instructions declare the correct rule relating to the remedy, though evidence received without objection should have been excluded on objections, and, where the court gives an incorrect rule, prejudicial error results.

12. DEATH (§ 78) — ACTION FOR NEGLIGENT DEATH — EVIDENCE.

Under Rev. St. 1899, § 2864, as amended by Laws 1905, c. 135 (Ann. St. 1906, p. 1637), making a railroad liable for the death of an employé by the negligence of a co-employé, and declaring that the railroad shall pay as a penalty a sum not less than $2,000, nor more than $10,000, the remedy must be imposed by the jury as a penalty, and not as compensatory damages, and the nature of the culpable act causing the accident and the age and earning capacity of decedent are proper subjects of investigation, and the facts disclosed may be considered by the jury.

Appeal from Circuit Court, Jackson County.

Action by Elizabeth Pratt, administratrix of Albert H. Pratt, deceased, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Elijah Robinson and Harris Robinson, for appellant. Noyes & Heath and G. L. Walls, for respondent.

JOHNSON, J.

This suit is prosecuted by the administratrix of the estate of Albert H. Pratt, deceased, to recover damages for the death of the decedent, which the petition alleges was caused by the negligence of defendant. The answer admits that Pratt was killed at the time and place alleged, but denies the other allegations of the petition, and contains pleas of assumed risk and contributory negligence. Verdict and judgment were for plaintiff in the sum of $4,500. Defendant appealed.

The injuries from which the unfortunate man died, in a few hours, were received about 8:30 o'clock p. m. March 5, 1906, in the terminal yards of defendant at Kansas City. Pratt was a switchman in the service of defendant, and was engaged at the time as brakeman on a loaded coal car that was being shunted from a main switch track to a side track. The yard where the switching was being done was what is called a gravity or "hump" yard. The tracks consisted of a main lead running east and west and 25 or more switch tracks diverging at intervals therefrom. Some of these switch tracks ran in a southwesterly, and others in a northwesterly, direction from the lead track. In approaching this yard from the east, as it was necessary to do in distributing a string of cars, the ground had been elevated in order that the end car, when detached from the train, would run by gravity to the place where it was to stop on a switch track. Switchmen were stationed in the yard to throw the necessary switches, and there is evidence to the effect that it was the duty of the engineer not to detach and send a car forward except on signal from the switchman, and that the signal should not be given except when the car had a clear track ahead. A brakeman was stationed on each car sent forward for the purpose of controlling the progress of the car to the place where it should stop. It was sleeting at the time of the injury, the night was very dark, and the rails were slippery. Some cars had been "kicked" forward, and the last one, an empty furniture car, for some reason, had not passed on to its side track, but had stopped on and "fouled" the main lead. The brakeman of that car had left it, taking his lantern with him, and had gone to a small fire in the yard, probably to warm himself. At any rate, the car was standing without any light on it when the next car was sent forward some five or ten minutes later. We are dealing now with controverted facts, and are stating the evidence most favorable to the cause of action. Pratt was the brakeman on the car last mentioned, which, as we have said, was a loaded coal car. He was at the brake, and, with the aid of a brake stick, was attending to his duty of controlling the progress of the car, which was running from four to five miles per hour. On account of the darkness and the sleet striking his face, he could see but a short distance. Evidently he did not see the furniture car, or know of its presence on the lead track, until it was too late to avoid a collision. It was the purpose to run his car on the lead track to a switch beyond the place where the furniture car was stalled. As the car ran along, a switchman uttered a warning cry, and Pratt was observed to be setting the brake. The coal car crashed into the furniture car with much violence, Pratt was thrown to the track, and the wheels of the coal car ran over him. There is evidence that the engineer, before shunting the coal car, received a go ahead signal from a switchman in the yard, and that Pratt tested his brake before the car was started and found it in good working order, and, further, it appears that neither the engineer nor Pratt received any signal to the effect that the main lead was fouled.

Acts of defendant alleged to be negligent, and of the commission of which we find substantial evidence, thus may be summarized: First. The furniture car was stopped on the main lead in a position to endanger the safety of the brakeman on the following car by the negligent manner in which the brakeman set the brakes. (There is evidence that the brakes of the furniture car were set very hard.) Second. Whether or not the fouling of the main lead was attributable to negligence, the car was negligently left standing without a light on it to give warning of the...