Stanley v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 08 May 1905
• Citation: 87 S.W. 112,112 Mo.App. 601
• Parties: MILTON STANLEY, Respondent, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO., Appellant
• Court: Kansas Court of Appeals

87 S.W. 112

112 Mo.App. 601

MILTON STANLEY, Respondent, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO., Appellant

Court of Appeals of Missouri, Kansas City

May 8, 1905

Appeal from Putnam Circuit Court.--Hon. P. C. Stepp, Judge.

Reversed and remanded.

Chas A. Loomis for appellant.

(1) Plaintiff's instruction numbered six defining the measure of plaintiff's damages was erroneous for the following reasons: (a) It permitted the plaintiff to recover for medical services and attention and expenses which plaintiff had become obligated to pay, but which he had not paid whereas under the petition he would only be entitled to recover for medical services which he had actually paid for. Muth v. Railway, 87 Mo.App. 432, and cases cited; Pritchet v. Boevey, 1 Cr. & M. 775; McLaughin v Railway, 113 Cal. 590; Robertson v. Railway, 152 Mo. 382; Morris v. Railway, 144 Mo. 505; Duke v. Railway, 99 Mo. 347. (b) Because there is no evidence to support said instruction in regard to medical services and attention. There is no evidence that plaintiff paid nor became legally obligated to pay for any medical services. Robertson v. Railway, 152 Mo. 382; Morris v. Railway, 144 Mo. 505; Waldopfel v. Transit Co., 102 Mo.App. 524; Smith v. Railway, 108 Mo. 251; Duke v. Railroad, 99 Mo. 347. (2) Instruction numbered three given for the plaintiff was error. The instruction does not properly define the measure of plaintiff's duty, even though he was a person of immature years. The rule as we understand it is that the law requires the plaintiff to exercise that degree of care and prudence of which he is capable, regardless of what degree of care and prudence other boys of his age and experience might have exercised under the same or similar circumstances. Van Natta v. Railway, 133 Mo. 13; Anderson v. Railway, 161 Mo. 424, and cases cited; Spillane v. Railway, 111 Mo. 555. (3) Whether the plaintiff was engaged in "operating a railroad" at the time he was injured, and therefore entitled to recover for any injury caused by the negligence of his fellow-servants, is a mixed question of law and fact. The court must declare the law, and the jury must find the facts. Instruction numbered five given for the plaintiff was error in that the court declared as a matter of law that the defendant was liable for the negligence of the coemployees of the plaintiff, without requiring the jury to find that the plaintiff was aiding in the work of "operating a railroad." Callahan v. Railroad, 170 Mo. 496-7. (4) The court committed error in overruling the defendant's demurrer to plaintiff's evidence. The petition alleges specific acts of negligence on the part of the employees of the defendant, and there was a total failure of proof on the part of plaintiff to sustain such allegation. Pryor v. Railway, 85 Mo.App. 378; McManamee v. Railway, 135 Mo. 440; Bartley v. Railway, 148 Mo. 124; Hite v. Railway, 130 Mo. 132; Waldhier v. Railway, 71 Mo. 514; Ely v. Railway, 77 Mo. 34; Lesley v. Railway, 88 Mo. 50.

E. C. Wickless, N. A. Franklin and Lorenzo Jones for respondent.

(1) The evidence was amply sufficient to take the case to the jury. Benedict v. Railway, 104 Mo.App. 218; Redman v. Railway, 84 S.W. 26; Campbell v. Railway, 175 Mo. 161, and cases cited; Hutchison v. Railway, 161 Mo. 253; Mirrilees v. Railroad, 163 Mo. 486-7; Grace v. Railroad, 156 Mo. 295. (2) The court did not err in giving plaintiff's instruction numbered six, or in refusing defendant's instruction numbered one. R. S. 1899, secs. 659, 865; Grady v. Transit Co., 102 Mo.App. 215; Hannon v. Transit Co., 102 Mo.App. 222-3; Gormon v. Railway, 113 Mo. 408. (3) The court did not err in giving plaintiff's instruction numbered three. To authorities cited by appellant in its brief confirming this doctrine, we add: Campbell v. Railway, 175 Mo. 175. (4) Instructions may be read as a whole, and when so read, plaintiff's fifth instruction is not erroneous. Owens v. Railway, 95 Mo. 169; Mathew v. Railway, 78 S.W. 271, and cases cited; Arnold v. Savings Co., 76 Mo.App. 159; Fisher v. Packing Co., 77 Mo.App. 108. (5) The verdict was clearly for the right party, and the judgment should be affirmed. Stubbs v. Railway, 85 Mo.App. 192.

OPINION

BROADDUS, P. J.

This is a suit for damages, the result of an injury alleged to have been caused by the negligent act of a fellow-servant while plaintiff was in the employ of defendant and while he was engaged in the work of operating defendant's railroad.

Plaintiff was one of a force of fifteen men employed by defendant as common laborers in constructing concrete abutments on defendant's railroad near Powersville, Missouri. The force was known as "the concrete gang" and was in charge of one Charles Hersey as foreman. The gang used two handcars in going to and returning from their place of work. On the morning of May 14, 1903, the foreman directed plaintiff, with six or seven others of the force, to put the handcar on the railroad track and load it with cement to take to their place of work about one mile south of Powersville. This was done, and the plaintiff, with others of the gang got on the car and started south. Another car with the other workmen in charge of the foreman preceded the car on which plaintiff was riding. The track was down grade and the rate of speed, according to the various estimates of the witnesses, was from four to seven miles an hour. After proceeding about one-fourth of a mile the plaintiff, who was standing on the front end of the car, was thrown or fell to the track and was run upon by the car and severely injured. The men on the platform of the car propelled it by the use of handles, they holding to the latter and "pumping," as it is ordinarily expressed. The plaintiff and two other men were manipulating the front handle, the plaintiff standing in the middle with his side to the south and the other two with their backs in that direction.

Plaintiff testified that his fall was caused by a sudden application of the brakes by one of the other workmen named Johnson. On cross-examination he stated that he did not see Johnson apply the brakes but he felt the effect when they were applied. Johnson denied that he applied the brakes, and all, or nearly all, the workmen on the car at the time were witnesses on the trial and none of them testified that the brakes were applied as claimed by plaintiff. And it is not claimed that any one, other than the plaintiff testified that the brakes were so applied to check the speed of the car. There was some evidence tending to show that plaintiff, who was using only one hand on the handle, was somewhat inattentive to his duties and was looking away at the time. That is, that he used his hand to assist in forcing down the handle, then let go and caught it again as it came up, and that by reason of his not looking to see what he was doing he failed to catch the handle as it came up, lost his balance and fell. There is no complaint that the manner in which he was manipulating the handle with one hand was carelessness, this being the only manner he could have used it, standing, as he was, between the other two men. It was his inattention to what he was doing that defendant insists was the cause of his injury, and as such was contributory negligence.

The finding and judgment were for the plaintiff from which defendant appealed.

The defendant contends that under the evidence plaintiff was not entitled to recover. The defendant's position is based upon the theory that there was no substantial evidence showing that the injury was caused by the sudden application of the brakes to the car, as claimed by plaintiff. It is true, plaintiff nor any other witness saw Johnson apply the brakes; but plaintiff's evidence is positive that he felt their application and that the suddenness of the check of the speed of the car caused him to fall off the car in front of it and onto the track. In our view of the matter, plaintiff's statement did constitute substantial evidence that the brakes were suddenly applied. It seems to us that it is a matter of common observation and knowledge that a person of normal organization standing on the platform of a handcar in motion would experience a sensation from the sudden application of the brakes. And judging from the physical law, we do not see how under ordinary conditions it could be otherwise. It is true, the positive, and even the negative testimony tended, in the most convincing manner, to show that it was not the application of the brakes but plaintiff's own want of ordinary care that caused him to fall from the car. But that was a question for the jury.

Objections are taken to the correctness of instructions numbered three, five and six given for plaintiff. Instruction numbered three is as follows: "Before you can find against the plaintiff on the ground of contributory negligence you must believe from the evidence that the plaintiff did not use such care and caution as a person of his age and experience would have ordinarily used under the circumstances surrounding him at the time." The plaintiff was a young man twenty years of age and had been engaged as a laborer on defendant's railroad for forty days previous to his injury, and had from his employment during that time acquired some experience in operating a handcar. At most, it is very simple work, not requiring much skill to enable one to become familiar with the manner in which it is done.

In Van Natta v. Railway, 133 Mo. 13, defining what care was required of plaintiff, a boy, the instruction was in the following language: ". . . providing the plaintiff was exercising that degree of reasonable care usually exercised by boys of his age and capacity." The court held that it was faulty in that it should have told the jury the...