Richardson v. St. Louis & H. Ry. Co.

• Decision Date: 13 July 1909
• Citation: 123 S.W. 22
• Court: Missouri Supreme Court
• Parties: RICHARDSON v. ST. LOUIS & H. RY. CO.

123 S.W. 22

RICHARDSON v. ST. LOUIS & H. RY. CO.

Supreme Court of Missouri, Division No. 2.

July 13, 1909.

Rehearing Denied November 23, 1909.

1. MASTER AND SERVANT (§ 238)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

Where an employé knowingly selects a dangerous mode of work, when a safer one is apparent, and is thereby injured, he cannot recover.

2. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— QUESTION FOR JURY.

Where two methods of moving a car from one track to another are apparent, whether a brakeman adopted the safer or more dangerous one is a question for the jury.

3. APPEAL AND ERROR (§ 1002)—REVIEW— QUESTIONS OF FACT.

Where the evidence is conflicting as to whether a brakeman adopted the safer or more dangerous method of moving a car from one track to another, the verdict is conclusive.

4. NEGLIGENCE (§ 97)—COMPARATIVE NEGLIGENCE.

As comparative negligence is not recognized, plaintiff cannot recover for injuries from the negligence of others to which his own negligence directly contributed.

5. MASTER AND SERVANT (§ 289)—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Where there is evidence that, if the engineer had obeyed the signal given him by plaintiff, there was no particular danger in plaintiff's attempting to couple cars, one of which he knew had a defective coupler, whether plaintiff was guilty of contributory negligence is for the jury.

6. APPEAL AND ERROR (§ 1064)—HARMLESS ERROR — INSTRUCTIONS.

The error of an instruction requiring a finding that both the engineer and fireman were negligent in failing to obey a signal by plaintiff, when the negligence of either would entitle plaintiff to recover, is not available to defendant.

7. TRIAL (§ 267)—MODIFYING INSTRUCTIONS.

Where the action is based on the failure of the "engineer and fireman" to obey plaintiff's signal, it is proper for the court to modify instructions requested by defendant so as to include the fireman with the engineer in referring to their negligence.

8. TRIAL (§ 260)—REFUSING INSTRUCTION.

The refusal of an instruction fully covered by one already given is not error.

9. MASTER AND SERVANT (§ 264)—ACTION FOR INJURIES TO SERVANT — PLEADING — VARIANCE.

That the petition for injuries resulting from the negligent failure of the engineer and fireman to observe and obey plaintiff's signal used the conjunction "and" in connecting those persons in the act of negligence does not require proof that they were jointly negligent, and evidence that the fireman was negligent in communicating the signal to the engineer, or the engineer was negligent in obeying such signal, does not constitute a variance.

10. PLEADING (§ 52) — SEPARATE STATEMENT OF CAUSES OF ACTION.

Though negligence of different classes, such as common-law and statutory, cannot be united in the same count, where the acts of negligence leading to the same injury are of the same character, any number of distinct acts may be alleged in one count.

11. TRIAL (§ 330) — VERDICT — SEVERAL COUNTS OR ISSUES.

Where several acts of negligence are properly alleged in one count of the petition, and plaintiff proves any one of such acts, a general verdict in his favor is sufficient.

12. APPEAL AND ERROR (§ 1002) — REVIEW — QUESTIONS OF FACT.

The verdict of the jury on conflicting evidence and proper instructions, as to the immediate cause of the injury sued for, is conclusive.

13. DAMAGES (§ 132) — PERSONAL INJURIES — AMOUNT OF RECOVERY.

Evidence, in an action for the loss of a thumb and finger, held to justify a judgment for $4,000, but not for $5,000.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Andrew J. Richardson against the St. Louis & Hannibal Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

This cause is pending in this court on appeal from a judgment rendered in the circuit court of Pike county in favor of respondent, Richardson, and against appellant. The action is for damages for injuries received by respondent on the 25th day of September, 1903, at Gilmore, while an employé of appellant. The substance of the charge on which respondent recovered in the circuit court is: That, while he, as one of appellant's brakemen was endeavoring to couple cars, he gave a certain signal to the engineer and fireman in charge of the engine pulling the train of which he and said engineer and fireman were a part of the crew running and operating same; that this signal, although observed and understood, was not heeded; but that the engineer, instead of backing and separating the cars, as the signal indicated, put his engine in a forward motion, suddenly shoved the cars together, and injured the respondent. In other words, it was charged that his injuries were due to the negligence of the engineer and fireman in not heeding and obeying his signal to "slack back easy." The answer was a general denial, charge of contributory negligence, and assumption of risk. The facts upon the record are, substantially: That appellant's railroad runs in a north and south direction, beginning at Hannibal and terminating at Gilmore, a station about 40 miles west of St. Louis on the line of the Wabash Railway Company. The two roads interchange business at this point. Appellant maintains yards at Gilmore. Its main line runs just north of the depot, and the main line of the Wabash runs just south of the depot. North of the depot and appellant's main line are its yards, consisting of three main side tracks extending in a general east and west course, numbered 1, 2, and 3, and converging at a point curved to the northwest of a coal chute of appellant's. A plat is hereto appended, marked "Exhibit 1," which illustrates and makes clear the situation in the yards:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the day of the injury complained of, Smith as conductor, Collins as engineer, Durell as fireman, respondent as head brakeman, and Lowry as hind brakeman, composed the crew which ran and operated a mixed train from Hannibal to Gilmore over appellant's line of railroad. The injury was received about 5 o'clock p. m., while this same crew was working in appellant's yards at Gilmore, and while they were immediately engaged in the attempt to take a car of coal (No. 8 on plat) from side track No. 1 and place it at the coal chute, shown on plat. The train having come in from Hannibal, the engine, when it got into the yards, was headed east. At the time there was standing on side track No. 1, beginning west and extending east, five freight cars, an engine tank (No. 6), a stock car, and a loaded coal car (No. 8); the coal car being the extreme east car. Respondent, who, as head brakeman, had charge of switching in the yards, signaled or directed the engineer to head in on side track No. 1 for the purpose of taking out the coal car No. 8 and placing it at the coal chute as indicated on the plat. The engine was coupled to car No. 1, and then the couplings were made between cars 1, 2, 3, 4, and 5; No. 5 being already coupled to engine tank No. 6. Then an effort was made by Lowry to couple the engine tank No. 6 to stock car No. 7, when it was found that the automatic coupler on the engine tank was out of order and had been supplied with link and pin. Lowry failed to make the coupling when the stock car, by reason of the impetus given it by the impact, went some distance east, and, as the grade sloped west at that point, the coal car rolled back against the engine tank, when respondent undertook to make the coupling, and failed. Then all the cars, as well as the engine, came to a standstill. The coal car was some little distance east, and was not connected, but was standing. All the cars from the engine tank to the engine were connected by couplings. The links used to couple the stock car and engine tank became crossed and held the drawheads apart several inches. Both respondent and Lowry were trying to make the coupling between cars 6 and 7; respondent being on the north side, and Lowry on the south side, of the track. From where they were looking toward the engine, side track No. 1 curved to the north. Hence respondent was in sight of the fireman's side of the engine, while Lowry could not see the engine. Then it was concluded by the two brakeman to try to make the coupling by having the engineer "slack back easy," which would separate the cars slowly, and that signal was given by respondent, which was received and understood by the fireman. For the purpose of adjusting one of the drawheads when they separated, as respondent claimed, he had his left hand between the drawheads. When the engine moved, instead of separating, the drawheads came together and injured respondent's left hand. The signal as given and understood by the fireman was intended to move the engine and cars coupled, west, while, as a matter of fact, the two uncoupled cars came together, which indicated an east movement of some kind. Respondent claims that the movement was east to the extent of about one step, which he had to take. Lowry says it was done so quick that he did not notice which way the cars moved, but that the indications were that they moved slightly east. As soon as the accident happened, Lowry ran from the track some 20 or 30 feet and slacked the engine back so that respondent's hand could be extricated from between the draw heads. The fireman says he understood the signal, gave it correctly to the engineer, and both say that the engineer reversed his engine, which was then set for forward motion, and that he complied with the commands of the signals. No one knew of the defective coupler on the engine tank until it was first discovered by Lowry. He gave the information to respondent. The witnesses agreed that if, when the signal was given by respondent, the cars had separated as was intended, there would have been very little danger, if any, of injury. It was shown that coal car No. 8...