Sullivan v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 169
• Parties: SULLIVAN v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

88 Mo. 169

SULLIVAN

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Special Law and Equity Court HON. R. E. COWAN, Judge.

REVERSED.

G. W. Easley for appellant.

(1) The first instruction given on behalf of the plaintiff, is an authorization of a verdict for the plaintiff, and is erroneous in the following particulars: ( a) It ignores the question of plaintiff's knowledge of the defect, and authorizes a verdict for the plaintiff without requiring the jury to pass on the question of whether the plaintiff knew of the broken or cracked tie beam or not. In connection with the third instruction given for the plaintiff, and the seventh refused for the defendant, it authorized a verdict for the plaintiff, although he knew of the defect. Waldhier v. Railroad, 71 Mo. 519. Before plaintiff could maintain this action he should have proven that he was not aware of the defect prior to the injury. And an instruction that authorizes a finding for the plaintiff, without submitting the question of such knowledge to the jury, is erroneous. Nolan v. Shickle, 3 Mo. App. 300; 69 Mo. 336. ( b) This instruction is further objectionable in that it bases the plaintiff's right to recover upon the doctrine of respondent superior, and not upon negligence. By this instruction defendant is made liable solely because its servant did not make a safe scaffold, and the instruction bears no intimation of liability because of any negligent act, and it was, therefore, erroneous. Crispin v. Babbitt, 81 N. Y. 520; McDermott v. Railroad, 30 Mo. 117; Cooley on Torts, 557; Wood on Master and Servant, sec. 429; Moss v. Railroad, 49 Mo. 170. ( c) The instruction was erroneous in that it rests the case on the ground that the defendant furnished the broken or cracked tie beam as an appliance as part of the scaffold. Chicago, etc., v. Ward, 61 Ill. 130; 12 Am. Ry. Rep. 434; Watson v. Houston, 11 A. & E. R. R. Cases, 216. ( d) This instruction also ignores the question of whether it was necessary for the plaintiff to step upon the defective tie beam, in the necessary and proper discharge of his duties, and this in the face of the evidence, that “it was not necessary for any one to walk out on that tie beam. The other pieces were put there for the men to walk out on.” ( e) This instruction does not put upon the jury the duty of ascertaining the cause of plaintiff's injury. It authorizes a verdict against defendant without requiring the jury to determine whether it arose from the alleged defect, or from the plaintiff's negligence, which, being pleaded, could not be ignored in plaintiff's instructions. Gilson v. Jackson Co. Horse Ry., 76 Mo. 282. ( f) The court erred in giving the second instruction for plaintiff, and in refusing those numbered three, four and five, asked by defendant. The relation between the foreman, Prather, and the plaintiff, was that of fellow servants. Smith's M. & S. (3 Eng. Ed.) 208, and note; Whart. on Neg., sec. 228-3; Cooley on Torts, 562; Hoke v. St. Louis, etc., Ry. Co., 11 Mo. App. 574; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; 42 Am. Rep. 543; Blake v. Railroad, 70 Me. 60; 35 Am. Rep. 297; McDermott v. Boston, 133 Mass, 349; Kelly v. Norcross, 121 Mass. 508; Summersell v. Fish, 117 Mass. 312; O'Connor v. Roberts, 120 Mass. 227; Brown v. Winsna, etc., Ry. Co., 27 Minn. 162; 38 Am. Rep. 285; Walker v. Boston, etc., Railroad, 128 Mass. 8. ( g) The eighth instruction asked by the defendant should have been given. The issue tendered by the petition was that plantiff was wholly unaware that the scaffolding was unsafe. The theory of the court below was, as shown in the refusal of this eighth instruction, that the plaintiff had to have actual knowledge of the want of safety of the scaffold, and why it was unsafe, that is, the defect that rendered it unsafe. “Absolute knowledge in the strict sense of the term, imports so high a degree of certainty as to the matter to be established that to require it in every instance would render the adjustment of differences between man and man on any just basis, practically impossible.” Wade on Notice, p. 3, sec. 3.

Warner & Tichenor for respondent.

(1) “If there are special risks in an employment of which the employe is not, from the nature of the work, cognizant, or which are not patent in the work, it is the duty of the employer specially to notify him of such risks, and on failure of such notice, if he is hurt by the exposure to such risks, he is entitled to recover from the employer.” Whar. on Neg., sec. 206. “It is his duty to give the employe a place where he can work free from danger, of which he has not notice. Ib., sec. 209; Elliott v. Railroad, 67 Mo. 272, and cases cited in opinion; Whalen v. The Cen. Church, 62 Mo. 326. (2) It was not required of plaintiff that he should have looked for defects in the scaffolding. Porter v. Railroad, 60 Mo. 160; Dale v. Railroad, 63 Mo. 460. (3) The foreman was not a fellow servant with plaintiff. Hall v. Rail road, 74 Mo. 298, and cases cited in opinion; Whalen v. The Cen. Church, supra. (4) In any event the duty as to the master furnishing proper machinery is so far personal that responsibility for injuries directly caused by the negligent discharge of it, exists although the master may for his own convenience act through other servants. Long v. Railroad, 65 Mo. 229; Lewis, Adm'r, v. Railroad, 59 Mo. 495; Gibson v. Railroad, 46 Mo. 163; Dillon v. Railroad, 3 Dillon, 323, and note page 327; Gilman v. Railroad, 13 Allen, 44, and cases cited; Lancing v. Railroad, 49 N. Y. 521; Packet Co. v. McCune, 17 Wall. 508. (5) The law presumes plaintiff was in the exercise of ordinary care at the time he was hurt, Buesching v. The St. Louis Gas Light Co., 73 Mo. 229, and whether a person injured by the negligence of another who was exercising ordinary care, is a question to be determined by the jury either where the facts are disputed or where there is a dispute or reasonable doubt as to the inferences to be drawn from undisputed facts. Vogel v. Railroad, 75 Mo. 665; Frick v. Railroad, 75 Mo. 600; Buesching v. The St. Louis Gas Light Company, supra.”

Silver & Brown and Thos. T. Crittenden for respondent on re-hearing.

(1) The authorities cited by the learned judge in support of his opinion we submit do not sustain him. They, and their cognates, will be found, on examination, to range themselves under one or the other of the following heads: ( a) Where the instruction criticised undertook to present the whole ground of recovery while it failed to hypothecate all the facts embraced in the issues necessary to make out plaintiff's prima facie case. ( b) Where the instruction omitting the whole of the facts in issue directs a verdict, and there are no other instructions given presenting the issuable facts to the consideration of the jury. ( c) Where the instruction given misstates the law, and the party then undertakes to cure the defect by giving another correct declaration of law. In Goetz v. Railroad, 50 Mo. 472, Judge Bliss draws the distinction sharply: “An instruction in itself erroneous cannot be supplied by another. One that gives a part of the case may be, but there should be no contradiction.” Now, in plaintiff's first instruction, there was no misstatement of any legal proposition. It properly declared the law as applicable to the facts predicated. It was good law as applied to plaintiff's prima facie case, and the other instructions given simply told the jury, that although they might find the facts to exist stated in the first instruction, yet if they found that the plaintiff was himself negligent as well as the defendant, he could not recover. So in Raysdon v. Trumbo, 52 Mo. 38, only a part of the facts in issue were presented in any of the instructions given. The court cites Chappell v. Allen, 38 Mo. 213, in which Wagner, J., p. 222, expressly says: “The error complained of was not cured by any counter instruction given on the other side.” Sawyer v. Railroad, 37 Mo. 240, does not support the opinion at bar. The observation of the court, page 263, clearly shows that, although the plaintiff had omitted to predicate in his instruction the right of recovery on the whole of the evidence or issue, yet if defendant's side of the case had been fully presented in other instructions there would have been no reversible error. So the same thing is true of Clark v. Hammerle, 27 Mo. 55. In that case defendant sought to defend his possession of the land in question, on the ground of its abandonment by plaintiff or those through whom he claimed; plaintiff's instruction did not present this defence, and defendant's instructions as to same were not given. Says Judge Scott in his opinion, 27 Mo. 71,“the defendants being so unfortunate as to have all their instructions on the question of abandonment rejected by the court, the court was not, therefore, warranted in putting the case to the jury in such a way as would exclude the consideration of the effect of the evidence given by them on the subject of abandonment.” In Goetz v. Railroad, 50 Mo. 472, plaintiff's instruction failed to hypothecate a fact essential to make out his prima facie case. In Iron Mountain Bank v. Murdock, 62 Mo. 70, Judge Sherwood, who delivered the opinion of the court, expressly says: “And this lack in the instruction was not supplied by any others.” In Henry v. Basset, 75 Mo. 89, none of the instructions presented properly the issue of abandonment of the contract involved in that case. (2) It has been the uniform ruling of this court that when a series of instructions taken together contain a correct exposition of the law, it is sufficient, and that this is so although the instructions taken separately may be objectionable. Williams v. VanMeter, 8 Mo. 342; Pond v Wyman, 15 Mo. 175; Gamache v. Piquignot, 17 Mo. 310; State v. McClure, 25 Mo. 338; Galena & Co. v. Vandergrift, 34 Mo. 62; Kennedy v. Railroad, 36 Mo. 351; ...