Swadley v. The Missouri Pacific Railway Company
| Decision Date | 27 November 1893 |
| Citation | 24 S.W. 140,118 Mo. 268 |
| Parties | Swadley, by Next Friend, v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.
Affirmed.
H. S Priest and W. S. Shirk for appellant.
(1) Defendant's objection to the introduction of any evidence should have been sustained. The petition does not state a cause of action, for at least two reasons: First. It shows upon its face, that the servants running and operating the train which jumped the track and injured plaintiff, were fellow servants with plaintiff. Summerbays v Railroad, 2 Col. 484; Dow v. Railroad, 8 Kan 642; Rohback v. Railroad, 43 Mo. 187; Whaaland v. Railroad, 8 Ohio St. 249; McGowan v. Railroad, 52 Mo. 372; Higgins v. Railroad, 104 Mo. 413; Schaub v. Railroad, 16 S.W. 924; Corbet v. Railroad, 26 Mo.App. 621; Murray v. Railroad, 98 Mo. 573; Sherwin v. Railroad, 103 Mo. 378; Harrison v. Railroad, 79 Mich. 409; Ely v. Railroad, 48 N.W. 222; Elliott v. Railroad, 38 Am. & Eng. R. R. Cases, 62; Parker v. Railroad, 19 S.W. 119. Second. It shows upon its face that plaintiff was walking along the defendant's right of way, going to a station; that he was not a passenger upon defendant's train, nor was he engaged in the performance of any duty toward defendant, and that defendant owed him no duty whatever, as to the rate of speed of its trains, nor the condition of its roadbed or track. And this is true, even if we admit that he was upon the right of way, at the time, as an employee. McKenna v. Railroad (K. C., Ct. App.); Henry v. Railroad, 8 Am. & Eng. R. R. Cases (Mich.), 110, on 112: Railroad v. Schertle, 2 Am. & Eng. R. R. Cases (Penn.) 158, on 163; Lucas v. Railroad, 40 F. 566; Richards v. Railroad, 47 N.W. 63. (2) Defendant's demurrer to the evidence should have been sustained. Railroad v. Brick, 21 Am. & Eng. R. R. Cases (N. Y.), 605; Rosenbaum v. Railroad, 34 Am. & Eng. R. R. Cases (Minn.) 274; Tuttle v. Railroad, 122 U.S. 189; Ward v. Bonner, 15 S.W. 805. (3) Plaintiff's evidence having wholly failed to show or explain the cause of the accident, he cannot recover. Elliott v. Railroad, 67 Mo. 272; Murphy v. Railroad, 71 Mo. 202; Bowen v. Railroad, 95 Mo. 268; Minty v. Railroad, 41 Am. & Eng. R. R. Cases, note on 554. So far as the plaintiff's evidence goes, the jury are left to grope in the dark as to the cause of the accident. And unless the cause of the accident was shown by the evidence the jury could not say it was brought about by defendant's negligence. Railroad v. Searley, 25 Am. & Eng. R. R. Cases, p. 358; Lucas v. Railroad, 40 F. 566; Railroad v. Smith, 38 Am. & Eng. R. R. Cases; Sauer v. Oil Co., 9 S. Rep. 566. (4) The court should have given defendant's instruction, at the close of all the evidence, to the effect that under the pleadings and all the evidence, the plaintiff was not entitled to recover. (See authorities cited to point 2, supra. (5) It was error to permit the witness Atkinson to testify as to the condition of the ties, on the first of August, nearly a month before the accident, especially as it had been already shown, by the plaintiff's own evidence, that the track had been repaired only a few days before the accident and that witness did not know what the condition of the track was on the first day of September. Stewart v. Ewing, 44 Am. & Eng. R. R. Cases, 313. (6) It was error to give plaintiff's first and second instructions. There is not sufficient evidence on which to base them.
W. M. Williams, J. H. Johnston and J. E. Hazell for respondent.
(1) The testimony showed that Reed was the foreman and had authority to direct the movements of the men under him. He was the representative of the defendant company and the orders given by him were the orders of the defendant itself. The plaintiff was at the place of the accident by orders of the defendant and was not a trespasser, but was there in the discharge of his duty as a servant of defendant. Sullivan v. Railroad, 107 Mo. 66; Cox v. Granite Company, 39 Mo.App. 424; McDermott v. Railroad, 87 Mo. 285; Dowling v. Allen, 89 Mo. 299; Moore v. Railroad, 85 Mo. 588. (2) The plaintiff being upon the right of way in the discharge of his duty, as an employee of the defendant, said defendant is liable to him for injuries sustained in consequence of its carelessness and negligence in having and maintaining its track in such a condition that it was not reasonably safe and secure. Stoher v. Railroad, 91 Mo. 509; S. C., 105 Mo. 192; Porter v. Railroad, 75 Mo. 66; McPherson v. Railroad, 97 Mo. 253; Dayharsh v. Railroad, 103 Mo. 570; Wash v. Railroad, 52 Mo. 434. (3) It was not necessary for plaintiff to introduce experts to show the cause of the accident. The evidence showed the condition of the track, and rate of speed of the train, and all the circumstances connected therewith. The triers of the fact were authorized to draw all reasonable inferences authorized by the evidence. Bowen v. Railroad, 95 Mo. 268; Pierce on Railroads, p. 317. (4) There was no error in admitting the testimony of the witness Atkinson as to the condition of the ties in the defendant's roadway at the place of the accident about three weeks before it occurred. The plaintiff's evidence showed that there had been no change in the character of the ties. There were no new ties put in the track between the time of which Atkinson testified and the time of the accident. Stoher v. Railroad, 91 Mo. 509-517; Sidekum v. Railroad, 93 Mo. 400. (5) The plaintiff was not a fellow servant of the men who were in charge of the passenger train that was thrown from the track and by which the plaintiff was injured. Dixon v. Railroad, 19 S.W. 412; Pierce on Railroads, 379; Stettler v. Railroad, 46 Wis. 479. (6) It cannot be said that the plaintiff was guilty of negligence in walking along the right of way of the rairoad, and at a reasonable distance from the track, even though he knew the condition of the ties. It was the duty of the defendant to have its roadway in a reasonably safe condition, and it is liable for all damages resulting from its failure to perform this duty. There was nothing in plaintiff's conduct or actions that a reasonably prudent person would not under like circumstances have done.
OPINION
The plaintiff, a young man under the age of twenty-one years, prosecutes this suit by his next friend to recover damages for personal injuries. There is no dispute as to the following facts:
The plaintiff was one of a gang of six or eight men, engaged in repairing the track of the defendant's branch road from Tipton to Boonville, all under the control of David Reed, their foreman. On Saturday, the day of the accident, they were engaged in loading old rails on what is called the work train. They ceased work between five and six o'clock in the afternoon, a little earlier than usual, and went to their boarding house which was close to what is called the McAllister crossing, for their supper. In the meantime the work train went north to Boonville, to clear the track for a regular passenger and freight train, which was known to be about two hours behind its usual time. After supper Reed and his gang got their valises, intending to get upon the work train when it came back and go to Tipton, and from there to California on the main line, where they were to commence work on Monday morning. They all concluded to walk from the McAllister crossing south to a station called Speed, and there take the work train. While walking along the track they saw the passenger and freight train coming from the south, and they all stepped from the track to the right of way, some going on one side of the track and some on the other. As the train was passing them some of the cars were thrown from the track onto the plaintiff and others, killing at least two of the men and injuring the plaintiff. There was a sharp curve at this point.
The plaintiff founds his action on these averments, namely: That he was on the right of way by order of his foreman; that the defendant negligently suffered its road bed and track thereon to become unsafe and dangerous at the point of the accident, in these respects: the ties were decayed and rotten, the rails were badly worn and not properly fastened to the ties, and the outer rail of the curve did not have sufficient elevation; that the passenger and freight train was run and operated at a dangerous and reckless rate of speed; and that the cars were thrown from the track and upon plaintiff because of the unsafe condition of the track and dangerous rate of speed of the freight and passenger train.
The evidence of the plaintiff is very strong to the effect that Reed ordered his men to go from the McAllister crossing to Speed and pick up the tools as they went along and take the work train at that place for California, and that they walked along the track as they did because of the order of Reed, their foreman. On the other hand Reed says he told his men they would get their supper and wait at the crossing for the train, and this was the order he had from the division superintendent. He says when they got to the crossing, he or some of the men suggested that they walk down to Speed and get on the train at that place, and accordingly they all started for Speed, walking on the track. Says he was not on duty at that time, it being after six o'clock.
There is much evidence tending to show that the ties were from two to two and a half feet apart, that some of them were of the usual size and others smaller, that many of them were rotten so they would not hold a spike, and that the lines of the track varied from right to left and the rails were not level on top. Other evidence shows that the plaintiff...
To continue reading
Request your trial