Strayer v. Quincy, Omaha & Kansas City Railroad Company
| Decision Date | 21 April 1913 |
| Citation | 156 S.W. 732,170 Mo.App. 514 |
| Parties | JOSEPH STRAYER, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
Judgment affirmed.
Campbell & Ellison, J. G. Trimble and W. P. Hall for appellant.
(1) It is the duty of the receiving carrier to inspect all cars used by it, and that a failure to inspect or to inspect properly was the cause of the injury; that the failure to make a thorough inspection interposes an independent agency which severs the casual connection between the campany first guilty of negligence and the hurt. Railroad v. Merrill, 65 Kan. 436, 442-443; Fowles v. Briggs, 116 Mich. 425; Lellis v. Railroad, 124 Mich. 37; Glynn v Railroad, 175 Mass. 510; Sawyer v. Railroad, 38 Minn. 103; Wright v. Railroad, 140 Hun 343; Macklin v. Railroad, 135 Mass. 201. (2) Instruction 1 given for plaintiff was erroneous because it told the jury if they found the plaintiff, to find for him "in such sum as you may think proper not to exceed the sum of twenty thousand dollars." This was too uncertain and indefinite, and gave to the jury unlimited discretion in the assessment of damages. This proposition is well settled by the adjudicated cases in Missouri. Hawes v. Stock Yards Co., 103 Mo. 60, 66; Kick v. Doestre, 45 Mo.App. 135, 140; Flynt v. Railroad, 38 Mo.App. 94 98; Camp v. Railroad, 94 Mo.App. 272, 284.
Charles E. Murrell and Fugate & Son for respondent.
(1) The act of the appellant railroad company in placing the defective car at the Rombauer Coal Company's mine to be loaded with coal was the proximate cause of respondent's injury. Young v. Oil Co., 185 Mo. 634, 640; Lore v. Mfg. Co., 160 Mo. 625; Reed v. Railroad, 50 Mo.App. 504; Dickson v. Railroad, 124 Mo. 149; Roddy v. Railroad, 104 Mo. 234. (2) Even conceding that there were other causes which might have contributed to bring about the injuries to the respondent, yet of two proximate causes, the party who by his negligent act brought about these causes (one or both of them) is liable. Waller v. Railroad, 59 Mo.App. 410; Berry v Railroad, 114 Mo. 593; 29 Cyc. 469; same 492. (3) Instruction 2 criticised by the plaintiff is cured by instruction 3, which reads as follows: "The court instructs the jury that if they should find for the plaintiff that they may take into consideration in assessing damages the mental and physical pain and suffering endured by plaintiff since said injury, in consequence thereof; the character and extent of said injury and its continuance, if permanent, together with his loss of time and service, and you may find for him in such sum as in the judgment of the jury under the evidence will be a reasonable compensation for the injury, not to exceed the sum of twenty thousand dollars." This instruction thoroughly covers the ground and cures any defect which might be in instruction 1. Henry v. Railroad, 113 Mo. 538; Burdoin v. Town of Trenton, 116 Mo. 372. (4) Conceding for the sake of argument that respondent's instruction 1 is defective and is not cured by instruction 2, yet the case should not be reversed, unless the court finds that the defective instruction has misled the jury to the prejudice of the appellant. Henry v. Railroad, 113 Mo. 538; Fitzgerald v. Barker, 96 Mo. 661; McGowen v. Ore & Steel Co., 109 Mo. 518. (5) Although the court should find that error was committed in giving the instruction complained of, yet it was not such an error that would induce the jury to find against the defendant, and the only effect it could have on their verdict would be as to the amount. There is no complaint on the part of appellant that the judgment is excessive, and in fact such complaint could not be seriously made. If the amount is fair then the instruction given was harmless error. Taylor v. Railroad, 16 S.W. 206; Hollenbeck v. Railroad, 141 Mo. 97; Newcomb v. Railroad, 182 Mo. 687; Lee v. Railroad, 195 Mo. 429; McKinstry v. Transit Co., 108 Mo.App. 19; Sherwood v. Railroad, 132 Mo. 345, 346; R. S. 1909, sec. 2082.
--This is an action to recover damages for personal injuries plaintiff alleges were caused by negligence of defendant. The injury occurred November 5, 1909, while plaintiff was working as a common laborer at a coal mine operated by the Rombauer Coal Company near Novinger in Adair county. The mine was on a hillside and was connected with defendant's railroad by a spur track owned by defendant. This track ran up hill to and beyond the mine and its end was called "the hole" and was used for storing empty cars furnished by defendant to the coal company for loading and shipping out the product of the mine. There was a "tipple" house not far from "the hole" at which the cars were loaded from overhead chutes. A number of sidetracks (one for each chute) ran through the "tipple" and were connected at each end with the main spur track. When cars were brought to "the hole" by defendant they were turned over to the coal company and defendant did not resume control over them until after they were loaded and run down the hill to a place on the spur track where defendant received them. Cars were left in "the hole" with brakes set and chocked wheels and when a car was needed at the "tipple" servants of the coal company would go to "the hole," unlock the brakes and allow the car to run down to the "tipple" by gravity where it would be stopped with its front end under a chute. During the operation of loading the car would be moved forward from time to time until the hind end was brought under the chute to receive its part of the load. After the loading was completed the car would be run down the hill to the place where loaded cars were received, all of which were destined for transportation over defendant's railroad.
On the day preceding the injury the car in question was brought down from "the hole" to the "tipple" and loaded in the manner described, after which it was run a short distance out of the "tipple" and allowed to remain over night on one of the sidetracks. The brake was set and the wheels were chocked. A fellow-servant of plaintiff brought the car from "the hole" and handled the brake during the process of loading and removing the car from the "tipple." Plaintiff assisted in the loading and chocked the wheels. The next morning another car was brought out of "the hole" and loaded at the same chute. Then it was run down and coupled automatically to the car in question. When the cars collided the front car jumped or pushed away the blocks at the wheels and as the brakeman on the second car could not bring both cars to a standstill with his brake, plaintiff mounted the forward car and hastened to the brake at its front end. There was a small platform attached to the end of the car for the brakeman to stand on and there was a "dog" pivoted at one end to the platform which worked in a ratchet wheel affixed to the brake rod and held the brake in place when it was set. There was a crack in the platform and the pivot bolt of the "dog" was in the line of the crack. This crack had been observed by the laborer who worked at the brake the preceding day and plaintiff had been informed that the "dog" did not work well. The brake had been used effectively up to this time, and we think it a fair inference from all of the evidence that plaintiff did not know the real nature of the defect at the time he started to set the brake. As he descended to the platform he perceived the crack but had no time to investigate the condition of the "dog" and did not know it would not hold the brake when it was tightly set. In a deposition taken sometime before the trial plaintiff made admissions that indicated he had knowledge of the limitations of the brake in its defective state, but at the trial his testimony contradicted such admissions and as the jury were invested with the function of weighing his testimony, we think they were entitled to accept his explanation of his former testimony and his later version of the occurrence. As soon as plaintiff reached the platform he wound up the brake, with the aid of a brakestick he carried with him, set the "dog" in the rachet with his foot and then proceeded to shift his stick in order to kind the brake still tighter. The strain thrown on the "dog" by this movement proved too great for its weakened attachment to the platform and the pivot bolt slid back and released the brake. The unexpected and rapid reverse revolutions of the brakewheel threw plaintiff off the platform of the car which, at the time, was moving forward very slowly. In trying to get out of the way plaintiff stepped into an unblocked switch and finding he could not extricate his foot, threw his body outside the track. The cars ran over his leg and, despite the efforts of the rear brakeman, ran down the hill. The defect we have described existed when the car was run into "the hole" by defendant, the crack was in plain view, and the defect created by its presence was easily discoverable.
The superintendent of the mine, introduced as a witness by defendant, testified that the duty of ascertaining whether or not cars provided by defendant were supplied with adequate brakes devolved on the laborers who handled the cars and that it was the practice of these men to run down the hill without loading cars found to have brakes which would not hold. We quote from his testimony:
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