Sullivan v. Missouri Pacific Railway Co.

• Citation: 10 S.W. 852,97 Mo. 113
• Parties: Sullivan v. Missouri Pacific Railway Company, Appellant
• Decision Date: 18 February 1889
• Court: United States State Supreme Court of Missouri

10 S.W. 852

97 Mo. 113

Sullivan v. Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

February 18, 1889

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Adams & Bowles for appellant.

(1) The defendant's objection to the introduction of any evidence, under the petition, should have been sustained. The allegation is, that the death of plaintiff's husband was occasioned "by the negligence of the officers, servants or employes of the defendant whilst running, conducting or managing said locomotive or train of cars." The only particular acts of negligence charged are, "that said train was out of time, and under the control and management of one Fitzgerald as conductor, and O'Donnell, as engineer." There is no suggestion as to why these circumstances were negligence, either in law or fact. Gurley v. Railroad, 93 Mo. 445; Stephens v Railroad, 86 Mo. 226-227; Railroad v. Jones, 76 Ill. 311. (2) The defendant's instructions in the nature of demurrers to the evidence at the close of plaintiff's case, and of the entire case, should have been given. McDermott v. Railroad, 30 Mo. 115; Rohback v Railroad, 43 Mo. 187; Harlan v. Railroad, 65 Mo. 22; Kelly v. Railroad, 75 Mo. 138; Yarnell v. Railroad, 75 Mo. 575; Stephens v. Railroad, 86 Mo. 221; Randall v. Railroad, 109 U.S. 478; Railroad v. Wachter, 60 Md. 395; Besel v Railroad, 70 N.Y. 171; Valtez v. Railroad, 85 Ill. 500. (3) The train that struck Sullivan was in plain view, and his failure to be vigilant and watchful for approaching trains was negligence, which directly contributed to his death, and plaintiff cannot recover. Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Cagney v. Railroad, 69 Mo. 424; Moody v. Railroad, 68 Mo. 470; Heinze v. Railroad, 71 Mo. 636; Zimmerman v. Railroad, 71 Mo. 476; Lennox v. Railroad, 76 Mo. 86; O'Donnell v. Railroad, 7 Mo.App. 535; Kelly v. Transit Co., 11 Mo.App. 1; Railroad v. Houston, 95 U.S. 697; Parker v. Railroad, 86 N.C. 221. (4) The engineer, conductor, and Sullivan were all fellow-servants of defendant corporation, and it is not liable to the plaintiff for negligence of the engineer or conductor, if any there was, in running and managing the train. McGowen v. Railroad, 61 Mo. 532; Blessing v. Railroad, 77 Mo. 312; Collins v. Railroad, 30 Minn. 31; Cormley v. Railroad, 72 Ind. 31; Baldt v. Railroad, 18 N.Y. 432; Railroad v. Devinney, 17 Ohio St. 197; Slatterly v. Railroad, 23 Ind. 81; Foster v. Railroad, 14 Minn. 360; Valtez v. Railroad, 85 Ill. 500; Farwell v. Railroad, 4 Met. 49; Holden v. Railroad, 129 Mass. 268; Handerville v. Railroad, 11 Ohio St. 417; Hays v. Railroad, 3 Cush. 270; Railroad v. Dolan, 32 Mich. 510; Whalen v. Railroad, 8 Ohio St. 249. (5) And the failure of plaintiff to show that they were not fellow-servants is fatal to her recovery. Blessing v. Railroad, supra. (6) This being an action by the legal representative of an employe of defendant, the court erred in instructing the jury that if they found for plaintiff to assess her damages at five thousand dollars. Flynn v. Railroad, 78 Mo. 190; Holmes v. Railroad, 69 Mo. 536; Elliott v. Railroad, 67 Mo. 272; Proctor v. Railroad, 64 Mo. 112. (7) It was an error to permit the plaintiff to read the deposition of the witnesses who resided in the county of Jackson, where the trial was had, without proof that they were not within the jurisdiction of the court. Gurman v. Mockbee, 29 Mo. 345; Livermore v. Eddy, 33 Mo. 547; Witherell v. Patterson, 31 Mo. 454; Gaul v. Minger, 19 Mo. 541.

Warner & Dean and E. A. Andrews for respondent.

(1) The petition is statutory -- in the exact language of the statute -- good against general demurrer, and therefore the general objection (if objection it was) was properly overruled. The petition states a cause of action. Edens v. Railroad, 72 Mo. 213; Schneider v. Railroad, 75 Mo. 295; Mack v. Railroad, 77 Mo. 232. (2) Upon the evidence, the inferences to be drawn therefrom, and the surrounding attendant circumstances, the case is one that should be submitted to a jury. (3) Whatever other courts may have decided, this court has long since determined that these train-men and Sullivan were not fellow-servants. Hall v. Railroad, 74 Mo. 298. and cas. cit. (4) The reading of depositions was properly allowed -- they were taken by consent, and read by consent, without proper objections at the time of taking or at the trial. This was a matter entirely in the discretion of the court below, unless the record shows an improper exercise of that discretion, which it does not in that case. Defendant had its day in court by appearing and cross-examining, a very different case from one non-invitum. Shepard v. Railroad, 85 Mo. 629.

Black J. Barclay, J., not sitting.

OPINION

Black, J.

The plaintiff is the widow of Patrick Sullivan; he was killed by a passenger train on defendant's road and she sued for and recovered five thousand dollars damages, basing her cause of action on section 2121, Revised Statutes, 1879, known as the second section of the damage act. The petition states that deceased was a track-hand, his duties being that of a track-walker over a section of the road, and it then proceeds to state: "That while so engaged on the eighth day of May, 1885, he was run upon, injured and killed by the locomotive and cars of defendant, known as the morning Lexington train, west, and resulting from or occasioned by the negligence of the officers, servants or employes of defendant, whilst running, conducting or managing said locomotive and train of cars; that the said train was out of time and under the control and management of one Fitzgerald, as conductor, and one O'Donnell, as engineer; all, at or near Rock creek, in said county and state aforesaid; on the line of defendant's railway."

1. The objection to the petition, made by way of an objection to the introduction of any evidence, seems to be that it does not state any specific act of negligence, and in support of this position we are cited to Gurley v. Railroad , 93 Mo. 445. The rule of that case is, that it is good and sufficient pleading to set out and describe the acts done with a reasonable degree of particularity, and then allege that they were negligently done. In this case the petition sets out circumstances as a matter of inducement, to the unnecessary extent of stating the names of the conductor and engineer in charge of the train; it states that Sullivan was run upon and killed by the designated train, and that his death was occasioned by the negligence of the defendant's servants while running, conducting and managing the locomotive and train of cars. The petition is clearly within the rule of the case before cited. It would be good as against a demurrer making this specific objection, and that being so, it is certainly good as against an objection made to the introduction of any evidence, after answer and on trial of the cause.

2. It is next insisted that the court erred in refusing to instruct the jury that upon the pleading and evidence plaintiff could not recover. The evidence shows that deceased had been in the employ of the defendant for about ten years. On the day in question he walked over his section of about four miles, and then back to a place where some men were loading a train of dirt cars with a steam shovel. The dirt cars stood on a side track and the shovel was some thirty or more feet to the north of the main track. Sullivan stood upon the north end of a tie of the main track, facing the shovel, with a wrench and a spike maul on his right shoulder. While in this position the passenger train going west came around a curve, hit and killed him. At the time, Sullivan was talking to some men, and was watching the shovel. The machinery and chains used in operating it made considerable noise, so that he evidently did not hear the coming train, nor did he see it. He could have seen it for a distance of about two hundred yards, most of the witnesses say, and they say the engineer could have seen him for a like distance. The train was a regular west-bound train, about ten to twenty minutes behind time, and going down grade at a rate of speed estimated from twenty to thirty-five miles per hour. One witness, who was at work with the shovel, says he saw the train when one hundred or one hundred and fifty yards away; that the engineer was watching the shovel, and continued to watch it until he came up to Sullivan; that he heard no bell, but heard a sharp whistle from the engine just as it hit Sullivan; and that no effort was made to stop the train previous to that moment.

For the defendant, the fireman on the passenger engine testified that he saw Sullivan when about one hundred yards away. He says: "As soon as I saw him I rang the bell. I didn't see him any more; he was looking at the steam shovel, and about that time I turned the curve, and I told the engineer there was a man on the track."

The engineer says he saw Sullivan when about fifty yards away, that he could not see him at a greater distance from his side of the engine, because of the curve. He testified: "I was going west on train 43, and about a quarter of a mile this side of Rock creek there was a steam shovel working there and Mr. Sullivan was standing on the end of one tie looking at the steam shovel working as I went around the curve; I whistled at him several times, but he couldn't take his eyes off, it seems, the steam shovel; he just seemed paralyzed looking at the steam shovel; I could not attract his attention with the whistle, and when I saw him still there I set the air brakes; I did all I could to attract his attention, but I couldn't do it."

Sullivan was not a wrong-doer because on the track. He was where he had a right to be; and while...