Tinkle v. St. Louis & San Francisco Railroad Co.

• Decision Date: 19 May 1908
• Parties: LOUISA TINKLE v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

110 S.W. 1086

212 Mo. 445

LOUISA TINKLE v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 19, 1908

Appeal from Henry Circuit Court. -- Hon. C. A. Denton, Judge.

Reversed and remanded.

L. F Parker, W. F. Evans, John H. Lucas and C. A. Calvird for appellant.

(1) The court erred in admitting evidence, viz., Louisa Tinkle: (a) Hearsay, conversation with one of Hess's men. (b) Conversation with Hess, it not being shown that Hess had authority to bind defendant. (c) Company had paid on two occasions board bills, it not being shown that the company had any knowledge of any alleged agreement between Hess and plaintiff. (d) Arrangement for cars, it not being shown that company knew anything of the plaintiff's connection therewith. (e) That no notice was given her that car was going to be moved. Cosgrove v. Railroad, 54 Mo. 498; Williams v. Edwards, 94 Mo. 447; Helm v Railroad, 98 Mo.App. 419; Seabold v. Bohn, 169 Mo. 537; Wilson v. Rutherford, 69 Mo.App. 304. (2) The court erred in overruling the demurrer offered by the defendant and refusing to give the peremptory charge at the conclusion of the whole case. There was no evidence of negligence in operation of the cars in switchyards, either in starting, running or stopping the same. Hedrick v Railroad, 195 Mo. 116; Beebe v. Railroad, 103 S.W. 1023; Wait v. Railroad, 165 Mo. 612; Erwin v. Railroad, 94 Mo.App. 297; Portuchek v. Railroad, 101 Mo.App. 55; Guffey v. Railroad, 43 Mo.App. 466. Res ipsa loquitur does not apply. Smith v. Railroad, 113 Mo. 70; Hamilton v. Railroad, 100 S.W. 671; Hagnie v. Railroad, 103 S.W. 581; Copeland v. Railroad, 175 Mo. 650. Contributory negligence: Engleking v. Railroad, 187 Mo. 164; Schmidt v. Railroad, 191 Mo. 215; Shield v. Railroad, 100 Mo.App. 517; Debalt v. Railroad, 123 Mo. 505; Tanner v. Railroad, 161 Mo. 497; Chaney v. Railroad, 176 Mo. 598. Risk assumed by plaintiff: Shields v. Railroad, 100 Mo.App. 517; Rutledge v. Railroad, 110 Mo. 320; Wait v. Railroad, 165 Mo. 612; Steffen v. Mayer, 96 Mo. 420; Williams v. Railroad, 119 Mo. 316. (3) The court erred in giving instruction 1 asked by plaintiff. This instruction ignores the issues tendered by the pleadings and authorizes a recovery if the jury should believe that defendant was negligent in running or switching one of its trains; ignores the question of authority of Hess, and makes defendant the insurer of the safety of the plaintiff. Thomas v. Babb, 45 Mo. 384; Lumber Co. v. Tie Co., 87 Mo.App. 167; Turney v. Baker, 103 Mo.App. 390; Bank v. Murdock, 62 Mo. 70; Mansur v. Botts, 80 Mo. 651; Yarnell v. Railroad, 113 Mo. 570; Crews v. Lackland, 67 Mo. 619; Greer v. Parker, 85 Mo. 107; Chappell v. Allen, 38 Mo. 213; Fitzgerald v. Hayward, 50 Mo. 516; McKeon v. Railroad, 43 Mo. 405; Deschner v. Railroad, 200 Mo. 333; Harper v. Terminal Co., 187 Mo. 588; Clark v. Kitchen, 52 Mo. 316; Chitty v. Railroad, 148 Mo. 75. (4) Contributory negligence: The burden is on the defendant, but the instruction is misleading in the fact that the contributory negligence herein stands admitted by plaintiff, and should have been declared as a matter of law. Warder v. Seitz, 157 Mo. 151; Moore v. Railroad, 126 Mo. 265; Eckard v. Railroad, 190 Mo. 611. (5) The husband was liable for medical bills, and for that reason instruction 9 was erroneous. Smoot v. Kansas City, 194 Mo. 524; Kroner v. Railroad, 107 Mo.App. 46; Wallis v. Westhoit, 82 Mo.App. 522; Newell v. Railroad, 108 Mo.App. 530; Perrigo v. St. Louis, 185 Mo. 285.

Johnson & Sea, John W. Ross, Peyton A. Parks and W. E. Owen for respondent.

(1) A non-expert witness may testify as to the speed of a train. He should qualify to make his opinion of probative force, and his qualification depends on his experience and training, his location and the observation he has made of running trains and other things that make his opinion of value -- its weight being for the jury. Stotler v. Railroad, 200 Mo 123; Walsh v. Railroad, 102 Mo. 586; Aston v. Railroad, 105 Mo.App. 231; Railroad v. Von Steinberg, 17 Mich. 99; Lawson on Expert and Opinion Evidence (2 Ed.), 505. (2) Evidence as to the usual course of conduct (plaintiff standing and cooking and cleaning up) for a considerable length of time without accident or injury is admissible in evidence to show that such course of conduct was not negligent. 5 Am. and Eng. Ency. Law, 639. (3) There was ample evidence of negligence on the part of defendant to go to the jury. It was for the jury and not for the court to pass on the credibility of witnesses, to reconcile the conflict in the testimony and determine the weight to be given to the evidence of the respective witnesses. There was strong and substantial evidence of the mismanagement of the train over which defendant had immediate and exclusive control, and with the running of which plaintiff had nothing whatever to do. Coudy v. Railroad, 85 Mo. 85; Clark v. Railroad, 127 Mo. 210; Blanton v. Dold, 109 Mo. 64; Dixon v. Railroad, 109 Mo. 413; Turner v. Haar, 114 Mo. 335; Burger v. Railroad, 112 Mo. 238; Harris v. Railroad, 89 Mo. 233; Ward v. Steffen, 88 Mo.App. 571; Linn v. Bridge Co., 78 Mo.App. 111; Whitehead v. Railroad, 99 Mo. 263; Sackewitz v. American Biscuit Co., 78 Mo.App. 144; Hupsley v. Railroad, 88 Mo.App. 348. (4) The proof of the sudden stop of the train, the injury to plaintiff, the attendant circumstances and the unusual physical facts raise a presumption of negligence on the part of defendant, without proof of the exact way in which the train was mismanaged. The doctrine of res ipsa loquitur applies between master and servant, where the servant is not at fault and in no manner was connected with the operation of the train. St. Clair v. Railroad, 122 Mo.App. 528; Haas v. Railroad, 11 Mo.App. 706; Blanton v. Dold, 109 Mo. 64; Lee v. Railroad, 112 Mo.App. 372; Miller v. Ocean Steamship Co., 118 N.Y. 199; Pasey v. Schooville, 10 F. 140; Sackewitz v. Am. Bis. Mfg. Co., 78 Mo.App. 144; Dougherty v. Railroad, 9 Mo.App. 484. It is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim res ipsa loquitur and the inference of the negligence, nor does the application of the principle depend on the relation of the parties, except directly so far as that relation defines the measure of duty imposed on the defendant. Griffin v. Maurice, 166 N.Y. 188; Shearman's Redfield, Law of Negligence (5 Ed.), sec. 59. The term res ipsa loquitur is used in the law of negligence with reference to cases where an accident has occurred, and the physical facts surrounding it are such as to create reasonable probability that the accident was the result of negligence of defendant. Houston v. Brush, 66 Vt. 331; Bahi v. Lombard, 53 N. J. Law 233; Excelsior Electric Co. v. St., 57 N. J. Law 224. The most apt and concise statement of the principle of res ipsa loquitur is found in the leading case of Scott v. London and St. Katherine Docks Co., 3 Hurl. & C. 596. (5) A servant assumes those risks alone which remain after the master has exercised ordinary care. It is the duty of the master to exercise reasonable care, commensurate with the nature of the business, to protect a servant from the hazards incident to it. Charlton v. Railroad, 200 Mo. 443; Curtis v. McNair, 173 Mo. 270; Williams v. Railroad, 119 Mo. 316; Rodney v. Railroad, 127 Mo. 676; Herdler v. Buck's S. & R. Co., 136 Mo. 3. (6) Plaintiff being accustomed to the movement of freight trains, and the jerking, jamming and jarring incident thereto, and being expected and required to cook and prepare meals and have them ready on time, whether cars were running or standing, and having done so for more than one year without accident or injury, was not guilty of contributory negligence in standing while the train was moving; and the question of her negligence, under the facts and circumstances revealed in evidence, was properly submitted to the jury, and their verdict is conclusive on that question. If any inference other than contributory negligence may be fairly drawn from all the evidence, then that question becomes one of fact for the jury. 5 Am. and Eng. Ency. Law, 639; Weller v. Railroad, 120 Mo. 648; Nugent v. Railroad, 80 Mo. 62; Harris v. Railroad, 89 Mo. 233; Palmer v. Tel. Co., 91 Mo.App. 114; Fox v. Packing Co., 96 Mo.App. 181. Recklessness or heedlessness should be very apparent to justify a declaration by the court, as a matter of law, that certain conduct on the part of plaintiff amounted to contributory negligence. Deschner v. Railroad, 200 Mo. 311; Reading v. Railroad, 33 Mo.App. 536. (7) By reason of the contract on the plaintiff's part to cook for the bridge gang and be transported from point to point, and the agreement of defendant to furnish cars and fuel for cooking, eating and sleeping and to transport provisions free of charge, all done for defendant's benefit, may not plaintiff's position on the train be compared to that of a postal clerk, and consequently a passenger on the freight train when injured, and entitled to protection as such passenger? Maguffin v. Railroad, 102 Mo. 540; Melon v. Railroad, 105 Mo. 455; Jones v. Railroad, 125 Mo. 666; Carroll v. Railroad, 88 Mo. 248. If not a passenger, then plaintiff was either a direct employee of the company, or a necessary employee of defendant's employee, riding on the train and doing work for the benefit of defendant with its expressed sanction and approval and under its protection, both as to compensation for her labor and personal safety. In either case, the defendant owed her the same duty it would any employee not engaged in running the train, but riding thereon on the business of the company. And that measure of its duty to plaintiff was to exercise reasonable care, commensurate...