Schroeder v. Chicago & A.R. Co.

• Decision Date: 08 February 1892
• Parties: Schroeder v. Chicago & Alton Railroad Company, Appellant
• Court: Missouri Supreme Court

18 S.W. 1094

108 Mo. 322

Schroeder v. Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri, First Division

February 8, 1892

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Action for personal injuries. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion of the court.

Affirmed.

Samuel Boyd for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. Hudson v. Railroad, 101 Mo. 31; Steffen v. Mayer, 96 Mo. 420; Milburn v Railroad, 86 Mo. 109; Railroad v. Hester, 11 S.W. 104; 72 Tex. 40. The court should have given instructions, numbered 5, 6, 8 and 9, asked by defendant. Plaintiff knew the danger and assumed the risk. Cummings v. Collins, 61 Mo. 520; Aldridge v. Blast Co., 78 Mo. 559; Steffen v. Mayer, 96 Mo. 423; Hudson v. Railroad, 101 Mo. 33. (2) The first instruction given for plaintiff was not supported by the evidence. The evidence showed that plaintiff's injuries occurred in attempting to take the handcar off the track, after the handcar had been stopped, and plaintiff had got off of it, and that the negligent running of the handcar was not the proximate cause of his injury. O'Brien v. Steel Co., 100 Mo 189; Gurley v. Railroad, 93 Mo. 450. (3) The second and third instructions given for plaintiff were erroneous because the petition does not charge negligence in removing the handcar, and the action is not based upon such negligence. Buffington v. Railroad, 64 Mo. 246; Ely v. Railroad, 77 Mo. 34; 81 Mo. 373. (4) The fact that plaintiff stumbled and fell is not charged to be negligence in defendant. Railroad v. Hester, 72 Texas, 40; 11 S.W. 1041; Railroad v. Estes, 37 Kansas, 715; S. C., 16 P. 131; Parker v. Railroad, 83 Ga. 539; Parker v. Railroad, 10 S.E. 233.

Davis & Wingfield and A. F. Rector for respondent.

(1) The demurrer to the evidence was properly overruled. (2) There was no variance between the petition and evidence. (3) The question of contributory negligence by plaintiff was submitted to the jury under proper instructions, and the finding was against the defendant, and the finding was conclusive. Tell v. Coal Co., 23 Mo.App. 226; Herriman v. Railroad, 27 Mo.App. 435; Petty v. Railroad, 88 Mo. 315; Mauerman v. Seimerts, 71 Mo. 104. (4) The negligence charged in the petition was the proximate cause of the injury complained of; the negligence of Klein in operating, managing and controlling said handcar, and attempting to remove the same from the track under the circumstances caused the injury to plaintiff, and the defendant is liable; this is true, although other causes may have concurred at the time to produce the injury. McDermott v. Railroad, 87 Mo. 302; Payer v. Bucksport, 18 Am. Rep. 239. (5) There was no error in refusing instructions, numbered 5, 6, 7, 8 and 9, asked by defendant. Instruction, numbered 5, did not declare the law. Plaintiff is not expected to be equal to the foreman in judgment, and must be governed by the foreman in all things except such as present such manifest danger as a prudent man would see and refuse to remain in. Herriman v. Railroad, 27 Mo.App. 443.

OPINION

Barclay, J.

Plaintiff sustained the damage which forms the subject of this action, near the city of Marshall, Missouri, while in the defendant's employ as a section hand. His evidence tended to show that he was working under Mr. Klein, foreman of the section on which the accident took place. The men began work usually at seven A. M. On the day of the injury, August 7, 1888, the westward bound passenger trains of defendant's line, due at Marshall at five and six A. M., respectively, had not arrived, when the time came for the section gang to go to work. Klein learned at the telegraph office that these trains were overdue. He ordered a handcar put on the track and started eastward with his crew of five men (including plaintiff). The handcar carried necessary tools, as well as the foreman, and all the men excepting one who went ahead at some distance to give warning on the approach of a train. About a mile east of Marshall, they met the first train. The men lifted the handcar from the track, and the train passed without mishap. The car was then replaced and continued its course eastward; but, this time, no one was sent forward; all the men rode on the car. After proceeding thus two miles, the second train was seen approaching, around a curve, emerging from some timber, at the rate of thirty-five or forty miles an hour. When first observed, it was about nine hundred or one thousand feet away. The foreman immediately stopped the handcar, jumped off as quick as he could, and began to lift it from the track; all the men did likewise. They did not get the car off. When Klein saw the engine was about sixty feet from them, he called to the men to "let the car go, and get out of the way." They tried to do so. All escaped save plaintiff, who had the misfortune to stumble and fall near the track, and, on rising to his feet, was struck by the handcar as the latter was thrown to one side by the passing locomotive. Both of his legs were broken, and he suffered severely in consequence.

When the foreman and men had hold, before the catastrophe, three stood in front, and three at the end of the car. Plaintiff was in the middle of the latter group, on the side farthest from the coming train and facing it.

Plaintiff had had several months' previous experience as a track hand; but had been employed by Klein, as one of this gang, only the day before the accident.

The jury returned a verdict for plaintiff for $ 4,000; and, after the usual preliminaries, defendant appealed.

The defendant offered no testimony; so that the plaintiff's was uncontradicted; but from this it is not to be assumed that that evidence is to be accepted as true.

The allegations of plaintiff's cause of action were denied by the answer. Thus was imposed on plaintiff the burden of proving the facts necessary to a verdict in his favor. Upon his submission of proofs to support the issue, on his part, the defendant was entitled to have the triers of fact determine its credibility, though defendant may have tendered nothing to contradict it. Should a verdict be returned against the evidence given in such circumstances, it might furnish a matter for the corrective action of the trial court in a proper case; but not for the exercise of the revisory power of an appellate court reviewing questions of law only.

It is not necessary to give the reasons for these positions. They inhere in a proper understanding of the system of trial by jury, as established by our constitution and laws, and have been already clearly stated by Commissioner Philips in Gregory v. Chambers (1883), 78 Mo. 294, where some of the earlier cases to the same effect are cited.

We are aware that intimations to the contrary have been thrown out in several decisions; but we do not regard those intimations as furnishing a safe guide for the action of appellate courts in Missouri. Instances may, and often do, arise in which the conduct of the case at the trial involves a concession or admission by a party of material facts previously in issue. In that event no court can properly deprive the benefited party of the full effect of such admission or concession. Our remarks do not apply to such instances, or, indeed, to any other facts than those now before us.

Here we shall treat the undisputed testimony for the plaintiff, in determining its sufficiency to support the verdict, just as it would be treated if it had been met by evidence of the defendant, as it was met by denials in the answer. And so the trial court viewed this phase of the case.

The cause was submitted to the jury on plaintiff's theory of defendant's negligence in the management of the handcar and crew by the section foreman; and, on the other side, the question of plaintiff's exercise of ordinary care, in the circumstances, was presented.

Both of these issues were finally given to the jury as questions of fact; but, in the first instance, the court was called upon to meet them by an instruction, asked by defendant, in the nature of a demurrer to the evidence. That instruction was refused, and error is now assigned upon that ruling.

I. From the outline already given of plaintiff's case it will be seen that he was a laborer under the orders of the foreman Klein, and, at the time of the accident subject to the sole authority of the latter.

It is a part of the personal duty of the master to give direction to the work he undertakes, and to prescribe the system or method of conducting it. In so doing he must use ordinary care for the safety of those engaged in his service.

Accordingly it has been held that the omission to adopt and to enforce rules, necessary for the reasonably safe management of a business as complex and as hazardous to life and limb as that here in view, may sometimes form the basis for a finding of negligence on the part of the master. Reagan v. Railroad (1887), 93 Mo. 348, 6 S.W. 371; Abel v. President (1891), 128 N.Y. 662, 28 N.E. 663; Whittaker v. President (1891), 126 N.Y. 544, 27 N.E. 1042. Such holdings rest upon the same principle that supports the rule of liability for defects in the plant or appliances. As has lately been tersely said in a case which received very thorough consideration, "a master is no less responsible to his workmen for personal injuries occasioned by a defective system of using machinery than for injuries caused by a defect in the machinery itself." Lord Watson in Smith v. Baker (1891), L. R. App. Cas. 353.

Rules, however, are but one means of giving direction to the master's work. Its guidance, as to details, is often necessarily intrusted to managers, foremen and others.

By whatsoever...