Rice v. Wabash R. Co.

• Decision Date: 12 May 1903
• Citation: 101 Mo. App. 459,74 S.W. 428
• Court: Missouri Court of Appeals
• Parties: RICE v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 428

101 Mo. App. 459

RICE v. WABASH R. CO.^*

Court of Appeals at St. Louis, Missouri.

May 12, 1903.

INJURY TO EMPLOYÉ—NEGLIGENCE—PLEADING AND PROOF—FELLOW SERVANTS—INSTRUCTIONS—MANNER OF SHOWING INJURY —DISCRETION OF THE COURT—EXCESSIVE DAMAGES.

1. The averment of negligence in the petition —that, while plaintiff was on a hand car, defendant, by its foreman and other employés, negligently caused and permitted another hand car under the charge and control of such foreman to rush with great force and dangerous speed against the rear of the car on which the plaintiff was riding, so as negligently to cause a collision of the cars, and thereby negligently cause other servants of defendant on the front of the rear car to strike plaintiff with such force as to throw plaintiff off his car— allows of proof that this occurred while the cars were racing.

2. Where plaintiff, riding on a hand car, was thrown therefrom by its being struck by a hand car coming from the rear, a requested instruction that he could not recover if his injury was caused solely by his want of care, in connection with the other servants of defendant engaged in operating the hand car, and was the result of such want of care on the part of him "or" his fellow servants, "or of both," relieves defendant of liability for negligence of its servants not participated in by plaintiff, and so is properly modified by substitution of "and" for "or," and the omission of the words "or of both."

3. The manner in which the plaintiff's injuries were demonstrated to the jury by the physician testifying for him as an expert will not be held prejudicial, in the absence of clear abuse of the discretionary power of the trial court as to the conduct of the trial.

4. An award of damages, to be held excessive on appeal, must be such as to shock the judicial sense of right and justice.

Appeal from Circuit Court, Montgomery County; Elliott M. Hughes, Judge.

Action by Charles V. Rice against the Wabash Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Geo. S. Grover, for appellant. Jas. F. Ball, for respondent.

REYBURN, J.

On July 31, 1899, plaintiff was one of a section gang repairing defendant's track in Montgomery county. A rainstorm had driven the workmen to New Florence for shelter and dry clothing, and, after the weather had cleared, they started to resume work on two hand cars; plaintiff being on the leading car, and one of three men on the rear, assisting in propelling it. The foremen of defendant in charge of the men was on the forward car, and by his directions they were run close together. Respondent sustained the injuries complained of, as he averred, by being knocked off by a collision beween the two cars, but, as asserted by appellant, by slipping off from his own carelessness, without any encounter of the cars.

1. The testimony is sharply in conflict as to the cause of the accident, and whether plaintiff was occupying an insecure position near the edge of the forward car, and fell therefrom by reason of the slippery and smooth soles of the new shoes he had just purchased at New Florence, or whether he was knocked off by striking the body of one of the men working the propelling lever of the rear car as the two cars came together. Be that as it may, upon the prior appeal this court held that the record abounded in evidence tending to establish that plaintiff's theory was the true explanation of his injury, and that he was hurt without any fault on his part, and the record now is replete with such testimony, and the imperative instructions asked by appellant at the termination of plaintiff's evidence and of all the testimony were properly refused. Rice v. Railroad, 92 Mo. App. 35.

2. The specific negligence charged is that while plaintiff was on the hand car, proceeding westward, the defendant, by its foreman and other employés, negligently caused and permitted another hand car under the charge and control of such foreman to rush with great force and dangerous speed upon and against the...