Rutledge v. Missouri Pac. Ry. Co.

• Decision Date: 02 February 1892
• Citation: 110 Mo. 312,19 S.W. 38
• Parties: RUTLEDGE v. MISSOURI PAC. RY. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

19 S.W. 38

110 Mo. 312

RUTLEDGE v. MISSOURI PAC. RY. CO.¹

Supreme Court of Missouri, Division No. 2.

February 2, 1892.

MASTER AND SERVANT — NEGLIGENCE — EVIDENCE — RISKS OF EMPLOYMENT.

1. In an action by a switchman against a railroad company for personal injuries, a petition which alleges that while he was uncoupling cars some one unknown to him caused the cars to be moved suddenly, whereby he was thrown from the car and injured, and that the cause of said cars being moved suddenly without notice was the company's failure to make and publish any rules or system of signals to govern its servants, does not state facts sufficient to constitute a cause of action, since the allegations are inconsistent.

2. Evidence that, while plaintiff was attempting to uncouple cars in a yard, the cars moved suddenly, throwing him off, and injuring him, and that the railroad company had failed to promulgate and enforce rules in regard to its work, is insufficient to justify a recovery in the absence of any evidence showing a causal connection between the accident and the failure to have rules.

3. Where plaintiff fails to prove that the train started up in response to any signal, and the inference from the evidence is that the sudden movement was the ordinary result of trains going on switches, there can be no recovery, since the ordinary movement of trains is one of the risks of the employment.

4. Where the record fails to show whether it is customary and prudent for switchmen to mount cars to uncouple them, it cannot be said as a matter of law that plaintiff was guilty of contributory negligence in so doing.

5. It is error to permit plaintiff to state what he would have done had he known that the sudden movement would occur.

6. Where plaintiff's arm was caught and crushed between the guard-rail and the main rail, the failure of defendant to block the guard-rail should not be submitted to the jury as a ground for recovery, since blocking is only intended to prevent feet from being caught.

Appeal from circuit court, Osage county.

Action by William Rutledge against the Missouri Pacific Railway Company to recover damages for personal injuries. Plaintiff obtained judgment. Defendant appeals. Reversed.

H. S. Priest and W. S. Shirk, for appellant. Ryors & Voshall and W. J. Zeveley, for respondent.

THOMAS, J.

Plaintiff recovered judgment in the circuit court of Osage county for $5,000 damages for personal injuries, and defendant appealed. Plaintiff was a switchman in defendant's yards at Chamois, and defendant's negligence, which, it is claimed, caused the injury, is specified by plaintiff in his petition as: First. That defendant "did not have made and published amongst its employes, at said town of Chamois, any system of signals by which the various servants of defendant engaged in working in the yards aforesaid should be governed, and by the use of which one employe could protect and guard himself against the action of another. Second. That at the place where plaintiff was injured defendant did not have the space between the guard-rail and the main rail blocked, by reason whereof his arm was caught between the rail and guard-rail, and crushed. Third. That on said 12th day of August he was ordered by his proper superior to cut off [uncouple] a certain car. That he started back over the cars to uncouple said car, and before he reached it some one unknown to him caused the cars to be moved, without notice to him, whereby he was thrown from said car, his right arm caught between the unblocked space between the rail and guard-rail, and he was there held, and thereby suffered the loss of his right arm. That it is the custom for the person actually engaged in coupling cars to give all signals for the engine to move the cars in any direction. This custom is merely in use by employes, and not because of any peremptory orders from defendant. That defendant was negligent in not having proper orders published touching the manner of moving cars while in the yard, and governing its employes in the discharge of their various and varied duties in said yards while making up trains and coupling and uncoupling cars. That this negligence or failure on part of said defendant to have established such proper system and published rules regarding said matters was directly the cause of said train of cars being suddenly, without notice to plaintiff, moved, whereby the plaintiff was thrown off and injured." The answer contained a general denial, and a plea of contributory negligence on plaintiff's part.

1. The court erred in overruling defendant's objection to the introduction of any evidence on the ground that the petition did not state facts sufficient to constitute a cause of action. The allegations are not consistent with each other. It is first averred that plaintiff proceeded, in pursuance of orders given him by the yardmaster, to uncouple the car, and before he reached the proper place to perform that duty "some one unknown to him caused the cars to be moved without notice to him, whereby he was thrown from said car," and injured; and then it is averred that the failure of defendant "to have such proper system and published...