Wagner v. St. Louis-San Francisco Ry. Co.
| Decision Date | 12 July 1929 |
| Parties | TAYLOR WAGNER, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
Appeal from Christian County Circuit Court.--Hon. Fred Stewart Judge.
REVERSED.
Judgment reversed.
E. T Miller and Ward & Reeves for appellant.
(1) The court erred in refusing defendant's requested instruction No. B, being an instruction in the nature of a demurrer to the evidence and offered at the close of all the evidence in the case. Clearly there was no negligence shown and a verdict should have been directed for the defendant. Neth v Delano, 184 Mo.App. 652; Davidson v. Railroad, 229 S.W. (Mo. Sup.) 786; Davidson v. Railroad, 301 Mo. 79; Quigley v. Hines, 291 Mo. 23; Toledo, etc., v. Allen, 72 L.Ed. (U.S.) 267; Mo. Pac. R. R. v. Abey, 72 L.Ed. (U.S.) 159. (2) His own negligence was the approximate cause of his injury. Smith v. Ozark Mater Mills Co., 215 Mo.App. 138; Katz v. Kansas City Dev. Co., 215 Mo.App. 662; Nivert v. Railroad, 232 Mo. 626. (3) In view of conceded facts, the plaintiff assumed the risks of his employment and the hazards and dangers of standing on the guardrail, and he is therefore precluded from recovering in this case. Chesapeake, etc., v. Nixon, 271 U.S. 218, 70 L.Ed. 914; Pryor v. Williams, 254 U.S. 43, 65 L.Ed. 120; Seaboard Air Line v. Horton, 233 U.S. 492, 58 L.Ed. 1062; Jacobs v. Railroad, 241 U.S. 229, 60 L.Ed. 970; O'Dell v. Railroad, 281 S.W. (Mo. App.) 456; Boyet v. Davidson, 269 S.W. (Mo. App.) 413; Quigley v. Hines, 291 Mo. 23; Toledo, etc., v. Allen, 72 L.Ed. (U.S.) 267; Boldt v. Railroad, 245 U.S. 441, 62 L.Ed. 385. (4) The court erred in refusing to direct a verdict for the defendant because the release pleaded in the answer and offered in evidence is a complete bar to plaintiff's cause of action. (a) There is no evidence in the cause that plaintiff was tricked or defrauded in any manner, or that he was mentally incompetent to execute the release. Woosley v. Wells, 281 S.W. (Mo. Sup.) 695; Allgood v. Light Company, 6 S.W.2d 51; Dyrssen v. Power Company, 295 S.W. (Mo. Sup.) 116; Austin v. Cooperage Co., 285 S.W. (Mo. App.) 1015; Thompson v. Railroad, 142 Mo.App. 234; Hall v. Railroad, 209 S.W. (Mo. App.) 582. (b) The release offered in evidence was a general one and mentioned no specific injuries. It was a release from all injuries which the plaintiff received by falling from the bridge on or about April 22, 1926, "including those that might herefter develop as well as those now apparent." Therefore, the fact that other injuries developed after the execution of the release, or that plaintiff received greater injuries not known or contemplated at the time of the settlement, afford no grounds to set aside the release. Newcomb v. Payne, 250 S.W. (Mo. Sup.) 553; Hogard v. Railroad, 202 S.W. (Mo. App.) 431; Thompson v. Railroad, 142 Mo.App. 234. (5) There was no mutual mistake such as to authorize the setting aside of the release. Newcomb v. Payne, 250 S.W. (Mo. Sup.) 553; Hogard v. Railroad, 202 S.W. (Mo. App.) 431; Anderson v. Drug Co., 149 Mo.App. 554; Chicago, etc., v. Wilcox, 116 F. 913. A mistake in opinion or belief relative to the future duration or effect of a personal injury affords no ground for setting aside a release. Chicago, etc., v. Wilcox, 116 F. 913; Homuth v. Street Ry. Co., 129 Mo. 629; Anderson v. Drug Co., 149 Mo.App. 554; McFarland v. Railroad, 125 Mo. 253.
B. L. Rinehart and J. N. Burroughs for respondent.
(1) The evidence produced on the trial of this cause was sufficient to justify the finding of the jury, that the plaintiff was injured because of the negligence of the defendant as alleged in plaintiff's petition in this cause. Haggard v. S.W. Railway Co., 220 S.W. 22; Brown v. St. Louis-San Francisco Railway Co., 227 S.W. 229; Laughlin v. Mo. Pac. Ry. Co., 248 S.W. 949; Brown v. M. K. & T. Ry. Co., 201 Mo.App. 332; Laughlin v. Railroad, 297 Mo. 346; Williams v. Pryor, 272 Mo. 613; Maher v. Railroad. 208 Mo.App. 305. (2) The plaintiff being an employee of the defendant, employed in interstate commerce, was entitled to recover in this cause of action if the jury found from the evidence that the defendant was guilty of negligence as charged in plaintiff's petition, even if plaintiff was guilty of contributory negligence. Such contributory negligence could only be considered by the jury on the question of reduction of the amount of damages. Fish v. Chicago, R. I. & P. Ry. Co., 172 S.W. 340; Laughlin v. Mo. Pac. Ry. Co., 248 S.W. 949. (3) The servant does not assume the risk of the master's negligence. Fish v. Railway, 263 Mo. 106; Williams v. Pryor, 272 Mo. 613; Laughlin v. Railway, 248 S.W. 949; Maher v. Railway, 208 Mo.App. 305; Wolfe v. Railway, 294 Mo. 170; Haggard v. S.W. Ry. Co., 220 S.W. 22; Brown v. St. Louis-San Francisco Ry. Co., 227 S.W. 1069; Brown v. M. K. & T. Ry. Co., 201 Mo.App. 332. (4) The release as plead in this cause by the defendant in its answer, and offered in evidence, under the rulings of both the Federal and State courts could be set aside either on the ground of fraud or mutual mistake of fact. Brown v. Texas Ry., 69 S.W. 651; Cabe v. Salem H. & S. A., 93 S.W. 124; Great Northern v. Fowler, 136 F. 118; Johnson v. Chicago Ry. Co., 224 F. 196; Great Northern Ry. Co. v. Reid, 245 F. 86; Gold Hurtig Mining Co. v. Bowden, 252 F. 388; Newcomb v. Payne, 250 S.W. 553; Standard Oil Co. v. Gail, 297 S.W. 1020; F. Kiech Mfg. Co. v. James, 261 S.W. 24.
This is an action for damages for personal injuries sustained by plaintiff while in the employ of defendant railroad company. The accident which gave rise to plaintiff's injuries occurred on a railroad bridge of defendant where plaintiff was employed as a bridge carpenter. It is alleged in plaintiff's petition that on the 22nd day of April, 1926, he was working on defendant's bridge under the direction of defendant's foreman and engaged in interstate commerce, labor and work; that while exercising due care for his own safety, one Harry Smith, a fellow servant, carelessly and negligently injured plaintiff; that "The said Harry Smith was then and there engaged in pushing a crab car along and on top of said bridge on the line of track laid thereon and the plaintiff was engaged in boring holes through timbers on top of said bridge and within said trackway; that when plaintiff was notified of the approach of said car he ceased his work as quickly as possible and stepped to the side of the track and on the guardrail and to a place of safety from being struck by said car; that the said Harry Smith as the agent, servant, and employee of the defendant negligently and carelessly failed to stop or fall back or to step off said guardrail as said car approached and passed by the plaintiff, but negligently and carelessly continued to advance on said guardrail, though there was not room for him to pass plaintiff on said guardrail, and in doing so, the said Harry Smith negligently and carelessly struck plaintiff with his body and person and knocked plaintiff off his balance and off said bridge which was twelve or fourteen feet in height from the ground below, and through the negligence and carelessness of the defendant, its agent, servant and employee in advancing on said guardrail and in striking the body of plaintiff with his own body as aforesaid, the said Harry Smith thereby caused himself to fall off said guardrail and bridge immediately following the fall of plaintiff and to fall upon plaintiff after he had lighted on the ground, and struck the side of plaintiff with his feet, body and person, and thereby inflicted upon plaintiff injuries of the most severe and permanent character, which could and would have been avoided had said Harry Smith exercised ordinary care and prudence for the safety of plaintiff, by stopping or stepping off the platform or guardrail as the said car approached or passed by the plaintiff."
The defenses pleaded in the answer are assumption of risk, contributory negligence, accident and written release and settlement. On trial to a jury the verdict was for plaintiff in the sum of $ 5000 and defendant has appealed.
This court rendered an opinion but sustained a motion for new trial for the reason the personnel of this court had changed since the case was submitted. We find no sufficient reason for receding from our former view of this case. It is charged that the court erred in refusing defendant's instruction in the nature of a demurrer to the evidence offered at the close of the whole case. The evidence most favorable to plaintiff, together with all reasonable inferences in his favor that may be fairly deduced therefrom, must be accepted as true in considering this demurrer.
Plaintiff was about forty-four years of age. He was a farmer and also a railroad carpenter, in which latter capacity he was employed by defendant in April, 1926, when he was injured. He had worked for defendant for several years prior to April, 1926, but not continuously. Plaintiff was injured while working on a bridge of defendant's and the injury resulted from his being knocked from the bridge by a fellow workman who, at the time, was assisting other workmen in pushing a crab car on defendant's track at that point.
Plaintiff testified on direct examination as follows:
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