Stid v. Missouri Pac. Ry. Co.

• Decision Date: 01 July 1911
• Parties: STID v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

139 S.W. 172

236 Mo. 382

STID v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

1. APPEAL AND ERROR (§ 761) — BRIEFS.

On appeal respondent is only required in his brief to meet the questions urged by appellant.

2. APPEAL AND ERROR (§ 1078) — REVIEW.

Where an instruction given is properly challenged in the record, the court is not limited to the reasons assigned in appellant's brief for holding it objectionable, but, as such exception goes to the whole matter, the instruction

may be condemned for any reason apparent to the court.

3. TRIAL (§ 242) — INSTRUCTIONS — VERBOSITY.

An instruction, in a negligence case in which the issues are few and simple, may be condemned on appeal, where it was so verbose as to be misleading.

4. TRIAL (§ 243) — INSTRUCTIONS — CONFLICTING INSTRUCTIONS.

Where, in an action for injuries to a switchman, the court charged, at defendant's instance, that there was no evidence that the accident was caused by insufficient lights in defendant's yards where the accident occurred, a part of another instruction that, if the jury believed that if plaintiff did not know that the roadbed and track of the main line was higher than the flat car by which he was struck, because of the darkness of the night and because the car had no light on it, and because while plaintiff was on defendant's switch engine the flat car was below him, etc. he could recover, was erroneous as conflicting.

5. TRIAL (§ 252) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where, in an action for injuries to a switchman, there was no evidence that he alighted from his engine to signal the engineer when the rear car of the train had passed and to throw the switch, an instruction, hypothesizing that the switchman alighted for that purpose, was erroneous.

6. APPEAL AND ERROR (§ 1064) — HARMLESS ERROR — INSTRUCTIONS — DAMAGES.

Where, in an action for injuries, plaintiff claimed damages in the sum of $25,000, an instruction that, if the jury found for plaintiff, they should assess his damages "at such sum, not exceeding $25,000, as they might believe from the evidence that he had sustained," while objectionable as tending to mislead the jury to believe that their finding for the full amount would meet the court's approval, was not reversible error.

7. MASTER AND SERVANT (§ 112) — INJURIES TO SERVANT — NEGLIGENCE — DAMAGES — GRAVITY YARD.

The construction of a railroad yard on the gravity principle, so that the switches descend slightly from the main track in order that cars placed thereon shall not run back onto the main track involuntarily, is not actionable negligence.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action by Ora W. Stid against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 211 Mo. 411, 109 S. W. 663.

Elijah Robinson and R. T. Railey, for appellant. L. H. Waters, for respondent.

GRAVES, P. J.

The petition in this case is somewhat verbose, and but few statements therein go to matters of negligence, but, that a full statement of the case may be presented, it is best to outline all the charges of the pleadings, as well as the evidence. Beginning therefore with the petition, or rather the amended petition upon which the case was tried, the following, epitomized, is the contents thereof: (1) That defendant is a Missouri railroad corporation; (2) that said defendant had and maintained switchyards in the East Bottoms near the corporate limits of Kansas City, Jackson county, Mo.; (3) that in such yards were a number of tracks on each side of the main track for the purpose of switching cars; (4) that, at said time, defendant had in its employ two switching crews, each consisting of a fireman, engineer, and switchman, which crew was in charge of a switch engine; (5) that it was the duty of such crews to switch cars as the business of the company required; (6) that, at the date of the accident, plaintiff was a member of one of said crews to switch and transfer cars as the business of defendant demanded; (7) that plaintiff had been in the employ of defendant as switchman in one of said crews but one day prior to the accident; (8) that one Ferguson was his foreman and in control of plaintiff and other members of his crew; (9) that plaintiff met with his accident on night of October 10, 1904.

The petition, in addition to the matters aforesaid, in this language then charges: "That on the night of said last-mentioned day and after dark of said day, plaintiff and the crew of which he was a member were proceeding with a train, consisting of an engine and 10 cars, eastwardly through said yards on said main line for the purpose of transferring some of the cars of said train to a side track of defendant on the north of said main line. That plaintiff and said foreman were then and there riding on said engine of said train, and that, before reaching the switch of said side track on which said cars were to be transferred, said foreman got off of said engine, and, when said engine reached said switch, the plaintiff, by the direction of said foreman and in pursuance of his duty under said employment, got off of said engine on the south side of said track of said main line, that he might and could signal the engineer in charge of said engine to stop when the rear car of said train had passed such switch, and to throw said switch and then to signal said engineer to back in upon said side track and to repeat to said engineer any signals given by said foreman, for said engineer. Plaintiff further states: That there was then and there a side track of defendant on the south side of said main line, and that said side track was about eight feet from and about two feet lower than the track of said main line, and that the roadbed of said main line then and there sloped down and towards said last-mentioned side track. That plaintiff got off of said engine on the south side of said engine, and, as he stepped therefrom and out of the way of the cars of said train, he fell and stumbled, without fault on his part, down the said slope of the roadbed of said main line to the north rail of said last-mentioned side track, and, before he was able to recover himself and get away from said side track, a flat car of defendant came west upon said side track, at a rapid and dangerous rate of speed, and struck plaintiff and knocked him down and ran upon and against plaintiff and crushed, bruised, and injured his legs and back, and that his left leg was thereafter and because of said injuries amputated just below the knee, and that his right leg was, because of said injuries thereto, and is, permanently injured and disabled. Plaintiff further states: That he entered defendant's employment as switchman, as aforesaid, on the night before he was injured, as aforesaid, and that he did not know at the time he was injured, as aforesaid that yards were insufficiently lighted, nor that said side track was then and there lower than said main line, and did not then and there know that the roadbed of said main line sloped down and towards said side track, and that he did not, at the time he got off of said engine and fell and stumbled as aforesaid, know that said flat car was coming on said side track. That there was then and there no light upon said flat car and no one upon or in charge thereof, and that the moving cars of said train made so much noise that he could not and did not hear the approach of said flat car, and that he then and there did not know that said flat car was upon said side track until it struck him, as aforesaid. That said yards were then and there insufficiently lighted. That defendant then and there knew that said yards were insufficiently lighted, and that said side track was two feet lower than the track and roadbed of said main line, and that said yards were then and there not a safe place for plaintiff to work, in the discharge of his duties as such switchman, and that said side track was two feet lower than the track of said main line and was in an unsafe and dangerous condition for that reason, and so plaintiff says that defendant was negligent in failing to have its said yards properly lighted and in having and maintaining said side track lower than the track and roadbed of said main line." Plaintiff prayed for damages in the sum of $25,000, with allegations as to special damages for loss of time and medical attention.

The answer, after some specific admissions, was (1) a general denial, and (2) a plea of contributory negligence. Reply, a general denial. Such are the issues made by the pleadings. Upon trial before a jury, the plaintiff had a verdict for $16,000, upon which in due course judgment was entered, and from such judgment the defendant has appealed. The sufficiency of the evidence to sustain the verdict is challenged, and hence a full statement of the facts proven is required.

Omitting the testimony as to the character of his injuries, which were very serious, plaintiff in his own behalf testified substantially as follows: That there were two main lines of track in the East Bottoms through these yards. That the east-going main track was on the south side of the yards, and west-going track on the north side of the yards. That there were a number of side tracks upon either side of these main tracks. That at the date of the accident and at the place of the accident the switch track just south of the south main track was "from 14 to 18 inches or two feet lower" than the main track. That on the night of the injury he went to work about 7 o'clock p. m. That he was injured on his first trip through the yards. That he was on the south main line track running east. That to the south of this was the switch track which was lower. That he and his foreman, Ferguson, was riding upon the front board of the switch engine. In chief, he then describes the accident: "Just before I stepped off, the foreman says...