Wagner v. The Chicago & Alton Railroad Company

• Citation: 232 S.W. 771,209 Mo.App. 121
• Parties: BEN C. WAGNER, Respondent, v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant
• Decision Date: 05 April 1921
• Court: Missouri Court of Appeals

232 S.W. 771

209 Mo.App. 121

BEN C. WAGNER, Respondent, v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 5, 1921

Appeal from the Circuit Court of Pike County.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

Vivian S. Smith and Charles M. Miller for appellant.

(1) The trial court erred in refusing defendant's peremptory instructions offered at the close of plantiff's evidence and at the close of all the evidence, for the reason that plaintiff made out no case of actionable negligence against defendant. Reeves v. Railroad, 251 Mo. 169-176; American Brewing Ass'n v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 620; Stone v Railroad, 171 Mass. 536; Starkey v. Greenville, 189 Mo.App. 352. Baker v. Lusk, 199 Mo.App. 44; Wilt v. Coughlin, 176 Mo.App. 275. Sullivan v. Railroad, 133 Mo. 1; Braden v. Railroad, 174 Mo.App. 584; Williams v. Railroad, 119 Mo. 316. (2) The trial court erred in giving plaintiff's instruction No. 1, for the reason that it is a roving direction to the jury and permitted the jury to base a verdict on any theory of negligence which they could construct or evolve out of their minds without reference to the charge of negligence in the petition, and allowed them to determine the law as well as the fact. Delo v. Mining Co., 160 Mo.App. 38-45, and cases therein cited. (3) The trial court erred in giving plaintiff's instruction No. 2 for the reasons: (a) It improperly submitted a matter which did not constitute negligence under the facts of the case, and (b) it did not properly declare the law as to diminution of damages in the event the jury found plaintiff negligent. Norfolk and W. Co. v. Earnest, 229 U.S. 114, 57 L.Ed. 1096. (4) The trial court erred in giving plaintiff's instruction No. 3 for the reason that there was no evidence upon which to base the instruction or from which the jury could determine without conjecture the issue therein submitted. (5) The trial court erred in refusing defendant's instruction No. 8, for the reason that actionable negligence could not be predicated against defendant on the distance the hand cars were being operated apart at the time of the accident. (6) The damages are excessive.

Hostetter & Haley for respondent.

BIGGS, C. Allen and Becker, JJ., concur.

OPINION

BIGGS, C.

Defendant appeals from a judgment against it for $ 4000 in a negligence case.

On June 27, 1917, and for about three months prior thereto, plaintiff was employed by defendant as a section hand at Louisiana, Missouri. On the day in question plaintiff and seven other men including a foreman, were returning to Louisiana on a hand car from a point about two miles west therefrom, where they had been at work repairing the track. The car in question was of the ordinary type, about six feet long and four feet wide, being slightly narrower than the space between the rails, and was propelled by handle bars worked by the men, one on the front end, and the other at the rear. At the time of the accident there were four other separate crews of men working on the track further west from the point where plaintiff had been working and the five gangs of men were at the same time returning to Louisiana, their common destination, on separate hand cars.

The crew of which plaintiff was a part, was riding on the front hand car. The second car was running about 25 or 30 feet behind the first, and a third car was about the same distance behind the second car. While plaintiff's car was traveling, according to the evidence, from six to ten miles an hour and running smoothly plaintiff, who was on the rear end of the hand car, being one of four men who were pumping the levers or handle bars up and down in order to propel the car, through some means slipped and fell from the car into the middle of the track. The plaintiff testified: "Well, by some means my right foot slipped some way and my left hand being sweaty, I had my left hand on the lever, and my foot slipped over, being crowded, overbalanced me and I fell off." As a result, the second and third hand cars, which were immediately following, ran over plaintiff while he was lying in the track. For the injuries thus received plaintiff brings this action, setting up several acts of negligence on the part of defendant, all of which were instructed out of the case for lack of evidence, save the allegation to the effect that the hand cars were negligently operated too close together, which was alleged to have been the cause of plaintiff's injuries.

Plaintiff at the time was engaged in interstate commerce, and hence the Federal Employers' Liability Act applies, resulting in liability on the part of defendant for an act of negligence of plaintiff's co-employees or fellow servants.

As the record now stands before us the sole right of plaintiff to recover is based on the theory that the men on the hand car following the one on which plaintiff was riding were in duty bound to so operate their car, either by keeping it under control, or running it at such distance behind the car in front, that in the event some one fell off of the front car they would be able to stop before running over him. Plaintiff asserts the crew on the second hand car could reasonably anticipate the danger of some one falling off the first car, and that it was negligence for them to run the car so close to the one in front as to be unable to stop in the event of the happening of that contingency.

Defendant contends that it was not negligence to operate the second hand car at the rate of six to ten miles an hour so close to the front car that in the event one of the men fell off of the front car on to the track the second car could not be stopped in time to prevent running over such man, and that the defendant could not be expected to reasonably anticipate the happening of such an occurrence, and therefore its demurrer to the evidence should have been sustained.

We cannot take defendant's view of this matter. It seems to us that the foreman or others in charge of the second hand car could reasonably have anticipated that some one might accidentally fall from the front car, in view of its crowded condition, there being four men standing side to side in a space of about four feet working the lever up and down, and there being no guard or rail around the car to prevent one from falling therefrom and in view of the further fact, as shown by many reported cases, that men before have often fallen from hand cars. There was no necessity for these cars being run so close together, and we do not think that the event was so unusual or improbable that there was no reasonable ground for the defendant to have anticipated the happening thereof. In this case one of the witnesses who had had experience, testified that one would be liable at any time to slip and lose his balance.

Those in charge of the second hand car, which was running at the rate of six or eight miles an hour about thirty feet behind the car on which plaintiff was riding and for whose acts the defendant was responsible, had reasonable grounds to anticipate that some one might fall from the front hand car, or that the front hand car might suddenly stop for various reasons, and it was therefore negligence to have run the second hand car so close to the front car that the same could not be stopped in time to prevent a collision or other accident. The evidence tended to prove that the second hand car was operated by the defendant in a negligent manner, in that considering the rate of speed at which it was traveling it was run too close to the front hand car, thereby causing injuries to the plaintiff when he accidently fell therefrom. [American Brewing Ass'n v. Talbot, 141 Mo. 674, 42 S.W. 679, l. c. 684, 42 S.W. 679; Fuchs v. City of St. Louis, 167 Mo. 620, 67 S.W. 610.]

In the case of Houston E. & W. T. Ry. Co. v. Samford (Court of Civil Appeal of Texas), 181 S.W. 857, a hand car in charge of a section foreman on which plaintiff, a section hand was riding, followed a passenger train as it pulled out of a station. The hand car was about 30 feet behind the train, and the train suddenly stopped to avoid a collision at a street crossing with a pedestrian. The hand car collided with the rear end of the train and the plaintiff was injured. It was there held that the proximate cause of the injury was the negligent manner of operating the hand car, and that the foreman should have anticipated the probable stopping of the passenger train under the circumstances, and that he could have avoided the collision by not running so close to the rear of the passenger train. The Court in that case, l. c. 858, says:

"Showing, as the evidence does, that the section foreman had reasonable grounds to anticipate the fact of the probable stopping of the passenger train at or near a street crossing in the town limits, and that he, in directing the operation of the hand car, might have avoided the collision or lessened its effect through a lower rate of speed and by keeping at a greater distance to the rear of the passenger train, a clear legal reason exists for sustaining the finding of the jury that the real producing cause of the injury which followed the colliding of the hand car with the passenger train was the negligent manner of operating the hand car."

A simple rule requiring that the hand cars be run a certain distance apart, say the distance between telegraph poles, would have prevented the second car running over plaintiff when he fell on the track.

Such a rule was in force by defendant in the case of Cardwell v Norfolk & Western R. R. Co., 114 Va. 500, 77 S.E. 612. The manifest purpose of such a regulation would be to prevent collisions between the hand cars when the front car would jump the...