State ex rel. Chicago & Alton Railroad Co. v. Allen

• Decision Date: 30 December 1921
• Citation: 236 S.W. 868,291 Mo. 206
• Parties: THE STATE ex rel. CHICAGO & ALTON RAILROAD COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

236 S.W. 868

291 Mo. 206

THE STATE ex rel. CHICAGO & ALTON RAILROAD COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

December 30, 1921

Writ quashed.

Vivian S. Smith, Charles C. Madison and Charles M. Miller for relator.

(1) The Court of Appeals, in holding that the case was one for a jury, as to whether or not the hand cars were being negligently operated by the section men too close together in reasonable anticipation that a section man in the ordinary and usual experience might suddenly slip and fall from the front car, contravened the general principle of law announced by this court in American Brewing Assn. v. Talbot, 141 Mo. 674, 683; Fuchs v. St. Louis, 167 Mo. 620 650; Sullivan v. Railroad, 133 Mo. 1; Williams v. Railroad, 119 Mo. 316; Chandler v. Gas Co., 174 Mo. 321, 328; Nichols v. Railroad, 225 S.W. 679; Reeves v. Railroad, 251 Mo. 169, 176; State ex rel. Lusk v. Ellison, 196 S.W. 1088; Zasemowich v Mfg. Co., 213 S.W. 799. (2) The Court of Appeals, in holding that paintiff's instructions 1 and 2 were not reversible error, and that the case was properly submitted to a jury, contravened the general principle of law declared by this court in Abbott v. Railroad, 83 Mo. 271, 278; Yarnall v. Railroad, 75 Mo. 575, 583; Hinzeman v. Railroad, 182 Mo. 611, 624; Magrane v Railroad, 183 Mo. 119, 132; Chitty v. Railroad, 148 Mo. 64, 75; State ex rel. v. Ellison 270 Mo. 645, 654; Roscoe v. Railroad, 202 Mo. 576, 588; Delo v. Mining Co., 160 Mo.App. 38, 45; State ex rel. v. Ellison, 270 Mo. 645, 653; State ex rel. v. Ellison, 199 S.W. 985.

Hostetter & Haley for respondents.

(1) There is no conflict between the opinion of the Court of Appeals and the cases cited by relator's counsel on the question as to whether the trailing hand cars were negligently operated too close to the one on which Wagner was riding when he fell off onto the track and was run over. The cases cited by relator's counsel as being conflicted with by the Court of Appeals' opinion merely announce the general doctrine (which is in nowise controverted by the opinion complained of,) that negligence cannot be ascribed to anyone for failing to anticipate or provide against the happening of an unusual or improbable event, or one which could not have been reasonably anticipated under the circumstances. The Court of Appeals, in its opinion, expressly recognizes this general doctrine, and cites two of the opinions on which counsel for relator based their claim of a conflict, to-wit: American Brewing Assn. v. Talbot, 141 Mo. 647, and Fuchs v. City of St. Louis, 167 Mo. 620. In no case cited by relator, has this court ever held that the fact of a man falling from a crowded hand car where he was wedged in with three co-laborers and all working the rear handle bar, was such an improbable or unusual event or not within such reasonable anticipation, as it would not be negligence to fail to anticipate the happening of such an event. The Court of Appeals, in its opinion, says that from the evidence and facts, as stated by it, that the event was not so unusual or so improbable as to come within the rule announced by the cases cited by relator's counsel. State ex rel. Peters v. Reynolds, 214 S.W. 122; State ex rel. Basket & Box Co. v. Reynolds, 224 S.W. 403. (2) The jury was confined to the remaining negligent act left in the case, and the Court of Appeals did not contravene the principle of certain decisions of this court when it held that the instruction complained of, while erroneous in that respect, was not injurious to the defendant, and did not constitute reversible error. Riley v. Independence, 258 Mo. 671.

OPINION

In Banc.

Certiorari.

ELDER J.

-- Certiorari to quash a judgment of the St. Louis Court of Appeals.

In an action for personal injuries brought by Ben C. Wagner, plaintiff, against the Chicago & Alton Railroad Company, defendant, the Circuit Court for Pike County rendered judgment for plaintiff, pursuant to a verdict of a jury, in the sum of $ 4,000. Defendant appealed to the St. Louis Court of Appeals, which court affirmed the judgment (232 S.W. 771). Defendant, as relator herein, brings certiorari against respondents, Judges of the St. Louis Court of Appeals, to quash the judgment of that court.

The evidentiary facts in the case, as stated in the opinion of the Court of Appeals, are as follows:

"On June 27, 1917, and for about three months prior thereto, plaintiff was employed by defendant as a section hand at Louisiana, Missouri. On the day in question plaintiff and seven other men, including a foreman, were returning to Louisiana on a hand car from a point about two miles west therefrom, where they had been at work repairing the track. The car in question was of the ordinary type, about six feet long and four feet wide, being slightly narrower than the space between the rails, and was propelled by handle bars worked by men, one on the front end, and the other at the rear. At the time of the accident there were four other separate crews of men working on the track further west from the point where plaintiff had been working, and the five gangs of men were at the same time returning to Louisiana, their common destination, on separate hand cars.

"The crew of which plaintiff was a part, was riding on the front hand car. The second car was running about twenty-five or thirty feet behind the first, and a third car was about the same distance behind the second car. While plaintiff's car was traveling, according to the evidence, from six to ten miles an hour and running smoothly, plaintiff, who was on the rear end of the hand car, being one of four men who were pumping the levers or handle bars up and down in order to propel the car, through some means slipped and fell from the car into the middle of the track. The plaintiff testified: 'Well, by some means my right foot slipped some way and my left hand being sweaty, I had my left hand on the lever, and my foot slipped over, being crowded, overbalanced me and I fell off.' As a result, the second and third hand cars, which were immediately following, ran over plaintiff while he was lying in the track. For the injuries thus received plaintiff brings this action, setting up several acts of negligence on the part of the defendant, all of which were instructed out of the case for lack of evidence, save the allegation to the effect that the hand cars were negligently operated too close together, which was alleged to have been the cause of plaintiff's injuries."

I. Relator, for its first assignment of error, claims that the Court of Appeals, "in holding that the case was one for a jury, as to whether or not the hand cars were being negligently operated by the section men too close together, in reasonable anticipation that a section man in the ordinary and usual experience might suddenly slip and fall from the front car, contravened the general principle of law announced by this court in the following cases: American Brewing Assn. v. Talbot, 141 Mo. 674, 683, 42 S.W. 679; Fuchs v. St. Louis, 167 Mo. 620, 650-652, 67 S.W. 610; Sullivan v. Railway Co., 133 Mo. 1; Williams v. Railway Co., 119 Mo. 316; Chandler v. Gas Co., 174 Mo. 321, 328, 73 S.W. 502; Nichols v. Railroad Co., 225 S.W. 679-681; Reeves v. Railroad Co., 251 Mo. 169, 176; State ex rel. Lusk v. Ellison, 196 S.W. 1088; Zasemowich v. Manufacturing Co., 213 S.W. 799."

That portion of the opinion of the Court of Appeals which is pertinent to this contention is as follows:

"As the record now stands before us the sole right of plaintiff to recover is based on the theory that the men on the hand car following the one on which plaintiff was riding were in duty bound to so operate their car, either by keeping it under control, or running it at such distance behind the car in front, that in the event some one fell off of the front car they would be able to stop before running over him. Plaintiff asserts the crew on the second hand car could reasonably anticipate the danger of some one falling off the first car, and that it was negligence for them to run the car so close to the one in front as to be unable to stop in the event of the happening of that contingency.

"Defendant contends that it was not negligence to operate the second hand car at the rate of six to ten miles an hour so close to the front car that in the event one of the men fell off of the front car on to the track the second car could not be stopped in time to prevent running over such man, and that the defendant could not be expected to reasonably anticipate the happening of such an occurrence, and therefore its demurrer to the evidence should have been sustained.

"We cannot take defendant's view of this matter. It seems to us that the foreman or others in charge of the second hand car could reasonably have anticipated that some one might accidentally fall from the front car, in view of its crowded condition, there being four men standing side to side in a space of about four feet and working the lever up and down and there being no guard or rail around the car to prevent one from falling therefrom, and in view of the further fact, as shown by many reported cases, that men before have often fallen from hand cars. There was no necessity for these cars being run so close together, and we do not think that the event was so unusual or improbable that there was no reasonable ground for the defendant to have anticipated the happening thereof. In this case one of the witnesses who had had experience testified that one would be liable at any time to slip and lose his balance.

"Those in charge of the second hand car, which was running at the rate of six or eight miles an hour about thirty feet behind the car on which plaintiff was...