Thompson v. St. Louis & San Francisco Railroad Co.
| Decision Date | 20 February 1917 |
| Citation | 192 S.W. 1034,270 Mo. 87 |
| Parties | ANDREW J. THOMPSON v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court. -- Hon. C. B. Faris, Judge.
Affirmed.
W. F Evans and W. J. Orr for appellant; Boone & Lee, of counsel.
(1) There was no proof of any breach of duty on the part of the company, because the plaintiff's evidence shows that the methods complained of were those adopted and practiced by railroads generally. Chismer v. Tel. Co., 194 Mo 189; Brand v. Car Co., 213 Mo. 698; Beckman v Brewing Co., 98 Mo.App. 555; Railroad v. Walker, 172 F. 351; Tuttle v. Railroad, 122 U.S. 189. (2) The master is not required to take precautions against the consequences of the possible negligence of his own employees, nor is he required to anticipate such negligence, but may conduct his business upon the assumption that his servants will exercise the proper degree of care, and when he furnishes appliances and places which are reasonably safe as intended to be used when due care is exercised by those using them he has done his duty. Grattis v. Railroad, 153 Mo. 380; Bridge Co. v. Seeds, 144 F. 609; Railroad v. Walker, 172 F. 351; Pollock on Torts, 36. (3) Instruction "A" is erroneous in that it permits the jury to determine the law instead of the facts. It permits the jury to say what constitutes actionable negligence. And it nowhere furnishes a legal test as to actionable negligence on the facts in the case. (4) It is also erroneous in that it permits the jury to substitute conditions for negligence. It permits the jury to say whether the switch without a lock was not reasonably safe "under the circumstances," but does not tell them what circumstances may be legally considered, and absolutely ignores the "ordinary usage of the business" as the test. Authorities under point 1; Bennett v. Lumber Co., 116 Mo.App. 699; Dunn v. Nicholson, 117 Mo. 374. (5) The defendant has never had the benefit of the right accorded all litigants to have the weight of the evidence passed upon by the trial court, because he resigned before the motion for a new trial was passed upon. Mill Co. v. Sugg, 142 Mo. 368; McCarty v. Transit Co., 192 Mo. 396. (6) The weight and preponderance of the evidence being clearly against the verdict, defendant is deprived of the right guaranteed to all litigants to have this question determined by the only person permitted to do so, by reason of a circumstance over which it had no control, because no other court under the law is vested with the discretion to grant a new trial except the judge who tried the case. And defendant has never had the benefit of that discretion in this case. (7) Plaintiff's instruction "A" attempts to cover the entire case and cannot be aided by correct instructions given for the defendant in conflict with it. Clark v. Hammerle, 27 Mo. 55; Budd v. Hoffheimer, 52 Mo. 297; State v. Lentz, 184 Mo. 223; Barth v. Loy, 82 Mo.App. 601; Glasscock v. Swofford Bros. Co., 105 Mo.App. 365.
David W. Hill and Ernest A. Green for respondent; Russell & Joslyn, of counsel.
(1) The trial court did not err in overruling the defendant's demurrer to the evidence. There was such a showing of negligence on the part of the defendant as required the submission of the case to a jury. Withers v. Railroad, 151 Mo.App. 488; St. Clair v. Railroad, 122 Mo.App. 519; Kremer v. Eagle Mfg. Co., 120 Mo.App. 247; Lee v. Railroad, 112 Mo.App. 372; Dutro v. St. Ry. Co., 111 Mo.App. 258; Charlton v. Railroad, 200 Mo. 413; Koerner v. St. Louis Car Co., 209 Mo. 157; Berry v. Railroad, 214 Mo. 593. (2) Instruction "A" given to the jury at the request of the plaintiff was a correct statement of the law, and required the jury to find every essential element in the plaintiff's case before it authorized a verdict for the plaintiff. Crane v. Railroad, 87 Mo. 595; Campbell v. Stave & Lbr. Co., 146 Mo.App. 689; Johnson v. Railroad, 96 Mo. 340; Deschner v. Railroad, 200 Mo. 310. (3) Instruction "A" is not in conflict with any correct instruction given to the jury at the request of the defendant. Bliesner v. Distilling Co., 174 Mo.App. 139; Craig v. United Rys. Co., 175 Mo.App. 616; Farmer v. Railway Co., 178 Mo.App. 579; Johnson v. Traction Co., 176 Mo.App. 174; Spaulding v. Lumber & Mining Co., 183 Mo.App. 656; Budd v. Hoffheimer, 52 Mo. 303; Wood v. Kelly, 82 Mo.App. 601; Pendegrass v. St. Louis & S. F. Ry. Co., 179 Mo.App. 517; Sager v. Mining Co., 178 Mo.App. 503. (4) Judge Finch, the successor in office to Judge Faris, who tried the case, was expressly authorized by law to pass upon the motion for a new trial. There was no error in his so doing, even if this assignment of error could be reviewed. Sec. 2032, R. S. 1909; State ex rel. v. Perkins, 139 Mo. 117; Felhauer v. City, 178 Mo. 635; Bailey v. Coe, 106 Mo.App. 653; Glavis v. Wood, 78 Mo.App. 35; Richardson v. Mercantile Assn., 156 Mo. 407. (5) Defendant's motion for a new trial does not assign as a ground thereof that the verdict was against the weight of the evidence. Consequently, that matter could not have been reviewed by the trial court. But in any event, the verdict is fully supported by the great weight of the evidence. Kansas City v. Forsee, 168 Mo.App. 213; Bohn v. Lucks, 165 Mo.App. 701; Compressed Air Co. v. Fulton, 166 Mo.App. 11; Loftus v. St. Ry. Co., 220 Mo. 479; Honea v. Railroad, 245 Mo. 621.
Respondent was a brakeman employed by appellant and was injured in a derailment. He recovered judgment in the Mississippi Circuit Court, and this appeal followed.
Appellant's tracks at Delta run east and west. On the north side of the main line is a side track about one-third of a mile in length and a little nearer the main line track than in the usual construction. At each end it connects with the main line by switches provided with locks. Nearly two hundred feet from the west end of this sidetrack is what is called a cross-over or intermediate track. It leads from the main line to the side track. Its west end connects with the side track and its east end with the main line. At the time respondent was injured an east-bound train on which he was acting as brakeman had stopped at Delta. One car near the rear of the train was "spotted" at the station which was just west of the west end of the side track. The train, nearly as long as the side track, extended east along the main line to a point several hundred feet beyond the east or main line switch of the cross-over. An order was received to "pick up" a car standing upon the side track, and respondent uncoupled the engine and proceeded with it to the switch at the east end of the side track. This switch he unlocked and opened, and the engine moved westward upon the side track. On this track there were three bunk cars, left for employees, and farther west was the car sought. There is evidence this car was standing west of the side track connection with the cross-over, and other evidence that it stood about opposite the side track cross-over switch. The engine backed westward along the side track and was coupled to the first of the bunk cars and then propelled the three westward until the car sought was reached, respondent riding upon the south side of the bunk car furthest from the engine and upon the side next to the main line. The side track cross-over switch-stand was on the north side of the side track. The rear bunk car was coupled to the car ordered to be "picked up" and the coupling made by impact. Respondent testified the first attempt failed, and that the car was driven west "into the main line train." There was evidence tending to show this car was, when the coupling was finally made, considerably over a hundred feet west of the cross-over switch-stand on the side track. There was evidence to the contrary. The engine, drawing the four cars, then started eastward for the main line, and respondent began to climb the ladder upon the south side of the rear car, that being on the side next the main line and nearest the cars in the train standing on the main line track. When the car on which respondent was riding reached the cross-over switch, instead of continuing along the side track, along which the engine was proceeding, it started down the cross-over, and struck a car in the train on the main line, catching respondent between the tops of the colliding cars and severely injuring him. There was evidence tending to show that the engine backed some of the cars past the switch connecting the cross-over track with the side track, and that that switch was uninjured, but that it could not have been so had cars been backed over it while it was set for the cross-over track; also to show that some of the cars had, after the engine started east, passed over the switch points and continued eastwardly upon the side track; that, at the time the car on which respondent was riding reached the cross-over switch it was moving ten or twelve miles per hour; there was evidence that unless the lever used to turn the cross-over switch was in the notch provided to hold it, the jolting of cars passing over the switch might throw the switch, and evidence that the lever on this particular switch would be jolted out of such notch by cars passing over the switch; that this was its condition after the injury to respondent, and that the switch was then in the condition it was in at the time of the accident and in which it had been long prior thereto. It was shown the switch-stand had a place for a lock and that a lock could have been supplied for forty cents, and would, if in use and in place, have prevented the injury; but that such lock was not in use and had never been used on that switch. There was in...
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