Root v. Kansas City Southern Railway Company

• Citation: 92 S.W. 621,195 Mo. 348
• Parties: ROOT v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Decision Date: 30 March 1906
• Court: United States State Supreme Court of Missouri

92 S.W. 621

195 Mo. 348

ROOT v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division One

March 30, 1906

Appeal from Bates Circuit Court. -- Hon. W. W. Graves, Judge.

Reversed and remanded.

S. W Moore, Cyrus Crane and H. C. Clark for appellant.

(1) The court ought to have sustained defendant's demurrer to the evidence at the close of plaintiff's case. (a) The evidence introduced by plaintiff failed to show that the fire in the bridge was caused by any negligence on the part of defendant, or as plaintiff alleged. (b) Because the verdict of the jury is founded merely on guess and conjecture. Peck v. Railroad, 31 Mo.App. 123; Shelden v Railroad, 29 Barb. 226; Stokes v. Burns, 132 Mo. 223; Smillie v. Dollar Store, 47 Mo.App. 402; Smart v. City, 91 Mo.App. 586; Moore v Railroad, 28 Mo.App. 622; Browning v. Railroad, 106 Mo.App. 729. (2) The court erred in admitting testimony offered by plaintiff. Stoher v. Railroad, 91 Mo. 517; Collier v. Railroad, 93 Mo.App. 147; Hipsley v. Railroad, 88 Mo. 354; Seafield v. Bohne, 169 Mo. 546; Russ v. Railroad, 112 Mo. 48; Hicks v. Railroad, 124 Mo. 125; State v. Brown, 181 Mo. 215. (3) The court erred in giving plaintiff's instruction 7. This instruction does not properly declare defendant's duty and placed a greater burden on it than is warranted by the law. Railroad v. Dennis, 38 Kan. 426; White v. Railroad, 31 Kan. 280; Hogan v. Railroad, 150 Mo. 49; Devlin v. Railroad, 87 Mo. 552; Beasley v. Transfer Co., 148 Mo. 421; Berning v. Medart, 56 Mo.App. 449. (4) The court erred in refusing defendant's instruction 3. By this instruction the defendant sought to have the jury instructed that defendant was entitled to knowledge, or opportunity of knowledge, of the danger, if any, of fires outside of the right of way and time to prevent injury therefrom. This feature was not incorporated in any of the instructions given, and failure to do so was error. Dickson v. Railroad, 124 Mo. 140; Goodrich v. Railroad, 152 Mo. 222; Williams v. Railroad, 119 Mo. 316; Hurst v. Railroad, 163 Mo. 319; Oglesby v. Railroad, 150 Mo. 77; Feary v. Railroad, 162 Mo. 96. (5) The court erred in refusing, at the close of all the evidence, to direct the jury to return a verdict for defendant. Because: (a) The negligence, if any, was that of fellowservants, for which defendant was not responsible. (b) The accident was shown to have been caused directly and proximately by the negligence of the engineer in failing to obey the rules of the company and stop the train in time. (c) The evidence showed beyond any controversy that the fire did not occur as plaintiff claimed. Act of Congress, May 2, 1890, sec. 31; Mansfield's Digest of Statutes of Ark., 1884, ch. 207; Railroad v. Gaines, 46 Ark. 555; Railroad v. Rice, 51 Ark. 467; Fordyce v. Briney, 50 Ark. 206; Railroad v. Henson, 61 Ark. 302; Railroad v. Hambly, 154 U.S. 349; Martin v. Railroad, 166 U.S. 399; Sanger v. Flow, 1 C. C. A. 57 (48 F. 152); Railroad v. Brown (Ark.), 54 S.W. 865; Loranger v. Railroad, 62 N.W. 137; Schaub v. Railroad, 106 Mo. 88; Grattis v. Railroad, 153 Mo. 380. (6) The court erred in refusing to sustain defendant's motions for new trial and in arrest of judgment. (a) The verdict was excessive under the evidence. (b) Plaintiff's case was not proven. (c) The overwhelming weight of the evidence was in defendant's favor.

Thos. J. Smith, W. O. Jackson and Geo. W. Wright for respondent.

LAMM, J. Brace, P. J., and Valliant, J., concur; Marshall, J., concurs in the result.

OPINION

LAMM, J.

Root was head-brakeman, riding on the engine of one of defendant's freight trains of seven cars and a caboose -- four cars laden with coal and three with hay. In running south at midnight on July 16, 1901, a mile or so south of a station named Poteau, in the Indian Territory, as the engine approached a long trestle spanning a depression, swamp or slough (called a creek by some witnesses) through which water flowed from the west to the east at flood times in Poteau river, a nearby stream, a fire was discovered in and toward the far end of the trestle, as near as we can determine from the evidence, about one thousand feet away from the engine at the time. The engineer applied his emergency air, slowed up but did not stop before the engine reached the fire. Facing this emergency, when the fact became apparent that the engine would not stop before reaching the burning part of the trestle, on the advice of the engineer and by common consent, all employees on the engine, to-wit, the engineer, fireman and plaintiff, jumped from its steps to the ground, a distance of from ten to twelve feet. By jumping plaintiff's right ankle was concededly injured and, it is claimed on one side and controverted on the other, that by the jump and by being struck in the small of the back by a rail, which bulged out simultaneously with his jump, kidney and spinal troubles ensued, resulting in traumatic neurasthenia, paralysis and a group of associated ills.

Plaintiff had judgment below for $ 8,000, from which defendant appealed.

The paper issues were as follows:

The petition alleges in effect that the country in the vicinity of the trestle was timbered; that defendant negligently allowed quantities of timber, brush, leaves, driftwood and other combustible matter, carried down at high water and lodged under said trestle and upon the right of way adjacent thereto, to accumulate and remain thereunder and upon said right of way, particularly under the south end of said trestle, until the date of the accident; that the creek spanned by the trestle and the water supply thereof, licked up by a drought, dried away; that said matter, so lodged and accumulated, became inflammable and susceptible to ignition from sparks and coals of fire from defendant's passing locomotives and from prairie and forest fires, then raging in the region; that the drought had lasted for thirty days; that the trestle was constructed of wood and became dry and inflammable and in danger of catching fire from passing locomotives and from forest and prairie fires -- all of which was known by defendant, or by the exercise of ordinary prudence could have been so known for more than thirty days prior to the injury of plaintiff; that defendant negligently failed to exercise care to remove said combustible matter from beneath said trestle and from its right of way, or to keep and maintain constantly a watchman, patrolman or guard to watch and guard said wooden trestle after the passage of trains and for the purpose of discovering and extinguishing fire that might catch in said inflammable matter, or in said trestle, or upon its right of way adjacent thereto, from passing trains or said prairie or forest fires along defendant's right of way; that because of said negligence a fire caught in the dry bridge itself, or in the debris beneath it, from prairie or forest fires along defendant's right of way, or from engines passing over the trestle, which fire necessitated plaintiff's leap from the engine and which acts of negligence caused plaintiff's injury.

The answer was a general denial, coupled with a plea that negligence on the part of plaintiff contributed to his injury; that the acts of his fellow-servants caused it; the assumption of the risks of his employment was pleaded, and that the injury occurred in the Indian Territory; that in said Territory the common law upon the subject of master and servant and fellow-servants was in force at the time, and according to said common law in said Territory the plaintiff was a fellow-servant with the trainmen, including the engineer, conductor and others, and a fellow-servant with the section foreman and the section men and inspectors of the track, and under said law defendant was not liable to plaintiff for any acts of said fellow-servants.

The reply was a general denial of the allegations of the answer, and, further, that if the common law was in force in the Indian Territory (which plaintiff denied) then, under such common law, plaintiff was not a fellow-servant with those of defendant's employees whose duty it was to keep and maintain the track, right of way and trestle of defendant in a reasonably safe condition.

At the close of plaintiff's case, a general demurrer was interposed and overruled, defendant excepting. A special demurrer was then interposed to the charge of negligence in the petition pertaining to the failure to have a watchman, patrolman or other guard at the trestle. This was sustained. At the close of the whole case, the court instructed the jury, at the request of the defendant, that the charge of negligence in not keeping a watchman, patrolman or other guard at the trestle had been withdrawn and they could not find for plaintiff on that charge; that if fire was communicated to the trestle from passing engines, then their verdict should be for defendant, and that if it was communicated to the trestle from sparks from burning trees off of the right of way blown over on the trestle, then their verdict should be for defendant, and also told the jury that if the fire was communicated to the trestle in any other manner than through inflammable matter on the right of way they should find for the defendant.

By still another of defendant's instructions the issues of fact submitted to the jury were restricted, thus:

"Before plaintiff can recover he must prove by a preponderance of the evidence:

"First that defendant was negligent in permitting inflammable matter to accumulate upon its right of way in proximity to fires outside of such right of way and in such quantities that such inflammable matter, if any, was likely to catch on fire; and

"Second that fire was communicated from the fires outside of the right of way to said...