Thorpe v. Missouri Pac. Ry. Co.
Decision Date | 15 November 1886 |
Citation | 89 Mo. 650 |
Parties | THORPE v. MISSOURI PAC. RY. Co. |
Court | Missouri Supreme Court |
Appeal from Jackson circuit court.Woodson & Slaughter, for respondent, Thorpe. T. J. Portis, for appellant, Missouri Pac. Ry. Co.
[COPYRIGHT MATERIAL OMITTED]
This is a suit for damages for personal injuries sustained by plaintiff while in the employment of defendant as a switchman in its yards at Kansas City, Missouri. A trial thereof in the circuit court of Jackson county resulted in a verdict and judgment in plaintiff's favor in the sum of $2,500, from which defendant has appealed to this court.
In his amended petition plaintiff charges a failure of duty on the part of defendant to furnish a sufficient number of hands in conjunction with plaintiff to carry on the business of making up trains in defendant's yards, and in conveying signals with proper dispatch and safety; that defendant was duly notified of this; that about the time of the injury plaintiff had gone between two of the cars, and had attempted to couple them; that, failing to do so, he stepped out, and gave a stop signal, and then went again between the cars to effect the coupling, but that, owing to the insufficiency of help employed to assist him, said stop signal failed to reach the foreman of the work or the engineer, in consequence of which the foreman gave the signal to the engineer to back the cars, which the engineer did, and that plaintiff's hand was caught between two of said cars, and thereby injured; and that the same was caused without any negligence on his part.
The objection was made at the trial, which is renewed in this court, that the amended petition wholly failed to state any cause of action, and that, therefore, no evidence should have been received in support of it. In support of this objection defendant's counsel has cited and quoted Thompson on Negligence, 1050, where the author, after discussing the grounds upon which the master's liability to his servant have been placed in a number of cases, says: “From this it would seem to follow as a rule of pleading that the plaintiff must allege in his declaration or complaint that the employer had notice or knowledge of the efficient cause of the injury, or ought, by the exercise of reasonable diligence, to have known it, and that the servant did not have such knowledge, or was not ignorant of it in consequence of a want of ordinary care on his part.” But the same author, at page 1057, also says: “It must appear that the servant was excusably ignorant of the defective appliances, yet it does not necessarily follow that a declaration will be bad which does not so allege, although it is better that such allegation should be made; and that this is obvious when it is considered that there are many cases where mere knowledge on the part of the servant does not operate to bar his right of action.
The cases from which the rule for which defendant contends is taken, are, we believe, from courts not in accord with this court as to the rule of pleading the contributory negligence of plaintiff, and which hold that the burden of proof is upon the plaintiff to show both the negligence of defendant and his own care, which is not the rule in this state. Petty v. Hannibal & St. J. R. R., (not yet reported.)
The continuance of plaintiff in the employment, with knowledge of the risk arising from the insufficient force for the required work, was set up affirmatively in the answer as a defense to the action, as we think it should have been. We therefore hold the objection to the petition not well taken.
It is urged in behalf of defendant that there is nothing in the evidence to show that plaintiff's hand was injured by the collision of the cars, or while he was attempting to make the coupling, or as to how the accident happened. In answer to the question to state how the injury described in the petition occurred, plaintiff says: On re-examination plaintiff stated, in answer to the question, “What injuries did you receive in that accident?” “I lost two of my fingers.” James Thorpe testified on this point: Enough is shown by the evidence, we think, to make it apparent that plaintiff's hand was caught and injured, and that his fingers were lost, in the manner and by the means, substantially, as charged in the petition.
A further objection to the sufficiency of the evidence is that it fails to show that there was any insufficiency in the number of hands employed to do the work. In answer to the question how many men are required and are usually considered necessary for the work in which he was engaged, the plaintiff testified: James Thorpe testified: A. G. Hinkle, who was yard-master at the time, testified: In the testimony of plaintiff also occurs the following: This statement by plaintiff that he did not regard three men as insufficient to do the business, provided they were careful, and things were in proper shape, has an important bearing on the question; but it is not, we think, to be regarded as a conclusive admission on his part that three men were sufficient. The statement itself is qualified. Plaintiff, as we have seen, stated several times that four men were necessary, and his evidence in this behalf should be taken in its entirety. This statement of plaintiff was for the jury to consider, along with the rest of his testimony, and the testimony of the other witnesses. The evidence on this branch of the case tends to show that the force was insufficient to transact the business required, and was, at least, sufficient to carry the question, along with that of a contrary tendency, to the jury for their determination.
A further objection urged, and which we may consider in this connection, is that the evidence fails to establish any legal connection between the injury to plaintiff and defendant's alleged negligence in not furnishing the necessary number of laborers; that “there is nothing in the testimony to show that plaintiff's going in between the cars to turn the link and prepare the coupling in any manner grew out of the failure of the railway company to have a sufficient number of employes in said yard, or that any accident happened in consequence of his going between said cars.” In this objection, as thus stated, defendant misconceives, as we believe, the case plaintiff seeks to make. The evidence shows that plaintiff gave a timely and proper signal for the train to stop before going in between the cars to turn the link over, or to prepare to make, or make, the coupling, and that the engineer and foreman failed to receive the signal thus given, in consequence of which the cars were backed upon him, and his hand caught and injured. It is this failure of the engineer and foreman to receive the signal to stop, duly given by plaintiff, which the facts and circumstances in evidence must connect with or show to be due to the insufficiency of the help furnished by defendant.
If McGee, who was plaintiff's fellow-servant, received the signal, and failed to notify the engineer or foreman, which is a view urged by defendant, or failed to receive it through his own neglect, then the defendant manifestly would not be responsible in damages for the injury thus occasioned plaintiff by his fellow-servant. Defendant, however, had the benefit of this theory of the evidence, if there was any to that effect, in an instruction given at his instance, which so declared the law. But it is well, perhaps even necessary, to state just here, in connection with this objection in its various forms, what the evidence shows, or tends to show, as to the situation and occupation of the parties at the time, and especially as to where said McGee was, and what he was doing, at the time.
It was in the night, and about 2 o'clock in the morning, when the accident happened. The men composing the switching crew...
To continue reading
Request your trial