Waldhier v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1885
• Citation: 87 Mo. 37
• Court: Missouri Supreme Court
• Parties: WALDHIER v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

87 Mo. 37

WALDHIER

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Circuit Court.--HON. T. A. GILL, Judge.

AFFIRMED.

G. W. Easley for appellant.

(1) The demurrer to the evidence should have been sustained. Waldhier v. Ry., 71 Mo. 514; 2 Thompson on Neg. 1008. (2) The first instruction given for plaintiff changed the issue of the track being permitted to remain out of repair, as made in the petition, to that of negligence in its construction. Such a change of issue was erroneous. Buffington v. Ry., 64 Mo. 246; Waldhier v. Ry., 71 Mo. 514; Price v. Ry., 72 Mo. 414; Edens v. Ry., 72 Mo. 212; Bullene v. Smith, 73 Mo. 151; Ely v. Ry., 77 Mo. 34. (3) The second and third instructions, given on behalf of the defendant, are erroneous in this, that they permit the plaintiff to recover, notwithstanding his knowledge of the defect, unless, as it is expressed in the second instruction, the plaintiff knew “the increased dangers arising from such defects,” or, as it is expressed in the third instruction, unless the plaintiff knew the condition of said frog, “and the increased danger on account of such defects.” Such qualifications have never been applied in any such case as that at bar. Wood on M. & S. 721; McDougal on Torts & Neg., 52-53; Smith on Neg. 159; Chicago, etc., Ry. v. Ward, 61 Ill. 130; Chicago, etc., Ry. v. Munroe, 85 Ill. 25; Crutchfield v. Ry., 78 N. C. 300; Leclaire v. Ry., 20 Minn. 9; Umback v. Ry., 83 Ind. 191; Way v. Ry., 40 Ia. 341. (4) The fourth instruction given for defendant is wrong, in that it told the jury that knowledge of the broken frog did not bar recovery, if the plaintiff did not know that the plate was also broken. By this it was immaterial what was the proximate cause of the injury. The instruction is also wrong in that it confounds the defence of contributory negligence with the waiver of a right of action for damages arising from a defect by reason of knowledge of the defect. Louisville, etc., Ry. v. Orr, 84 Ind. 53; Smith on Neg. 149; Shear. & Redf. on Neg., sec. 96; Haysler v. Owens, 61 Mo. 274; Johnson v. Lowe, 72 Mo. 639; Callahan v. Warne, 40 Mo. 136; Wells v. Ry., 56 Ia. 520. (5) The fifth instruction given for plaintiff defines no measure of damages, but directs the jury broadly to “assess his damages at such sum as you may believe he is entitled to,” not to exceed fifty thousand dollars. Plaintiff was entitled to compensation only for his injuries. 1 Suth, on Dam. 17; Field on Dam. 24; Sedg. on Dam., chap. 26; Wood's Wayne on Dam. 735. (6) The court erred in refusing defendant's instruction numbered one, as asked, and in adding the words “at the point which occasioned the injury” at the end of paragraph three of the instructions. As asked, the instructions covered the precise ground the books say must be shown to entitle the plaintiff to recover. Wood's M. & S., sec. 414; 4 Wait's Ac. & Def. 418. The addition made by the court to the third paragraph submitted to the jury the question of what was the proximate cause of the injury, which was a question of law. Henry v. Ry., 76 Mo. 288. (7) Plaintiff's fourth instruction should have been given. The means the servant may have of knowing a defect in machinery, etc., is evidence of knowledge. Muldowney v. Ry., 8 Am. R. R. 493; Porter v. Ry., 71 Mo. 66; Reed v. Gannon, 50 N. Y. 349; Maupin v. Emmons, 47 Mo. 306. (8) The damages are excessive, and the motion for a new trial should have been sustained on this ground. Chicago Ry. v. Fillmore, 57 Ill. 265; U. P. Ry. v. Hand, 1 A. R. R. 558; 1 Rorer on R. R. 735; 1 Sutherland on Dam. 810; Chicago, etc., Ry. v. Jackson, 1 Am. R. R. 575; Rose v. Ry., 9 A. R. R. 18; 1 Lacey's Ry. Dig. 171; 2 Lacey's Ry. Dig. 246; L. & N. Ry. v. Fox, 14 A. R. R. 374.

C. O. Tichenor for respondent.

(1) The duty of keeping machinery in repair for the protection and safety of employes is the same in kind as the duty of furnishing a safe and proper machine in the first instance. Fuller v. Jewett, 80 N. Y. 53; Ford v. Fitchburg Ry., 110 Mass. 240; Flynn v. Ry., 78 Mo. 203. (2) By the instructions the jury was told that if plaintiff knew of the defect which caused the injury, he could not recover; that if there was another defect which was not the cause, then the knowledge of it by him would not be a bar to a recovery. The instructions on this point went too far for defendant: First, because there was no evidence that plaintiff knew of the defect which caused the injury; and, second, because knowledge of a defect which causes an injury, does not necessarily bar a recovery. Ford v. F. Ry., 110 Mass. 261; Booth v. B. & O. Ry., 73 N. Y. 30; Mehan v. The S. B. & N. Y. Ry., Ib. 585, and cases cited; H. & G. N. Ry. v. Randall, 50 Tex. 554; Boyce v. Fitzpatrick, 80 Ind. 526; Ry. v. Fort, 17 Wall. 557; King v. O. & M. Ry., 11 Biss. 368; Wedgwood v. The C. & N. Ry., 44 Wis. 44; Muldowney v. Ill. Cent. Ry., 36 Ia. 471; Flynn v. K. C., St. J. & C. B. Ry., 78 Mo. 204, and other opinions of this court cited in opinion; Porter v. H. & St. J. Ry., 71 Mo. 66. Plaintiff's instruction (No. 4) on this subject was more favorable for defendant than the one given at its own instance (No. 3), for it was qualified by the following: “And providing a person of ordinary care and prudence would have worked about said frog with a broken point.” (3) There was no evidence of any negligence by plaintiff while cutting off the car at the time he was hurt. He was acting under orders, doing his work carefully, and in the way it should have been done. It has never been pretended that plaintiff was guilty of any contributory negligence, unless the claim that plaintiff had a knowledge of the defect is such a pretense, and it was denied by the answer that there was any defect. Plaintiff's instructions numbers one, two and three were copied after those approved in Porter v. Railway, and number five is approved in Whalen v. Railway, 60 Mo. 320, and again in the Porter case. The first instruction asked by defendant was modified by the court to make it correspond with number three, asked by it and given. Crutchfield v. Ry., 64 Mo. 255; Capital Bk. v Armstrong, 62 Mo. 59. (4) The damages are not excessive. As to the amount of damages: It has been over twelve years since plaintiff was hurt. Had he have been entitled to only eight thousand dollars at the time, at the usual interest, it would be equal to about the amount he asks. Belair v. The C. & N. W. Ry., 43 Ia. 676; Berger v. C. M. & St. P. Ry., 50 Wis. 427; H. G. & N. Ry. v. Randall, 50 Tex. supra.

Edwin Silver also for respondent.

(1) The appellant's objections are not well taken to the concluding clause of plaintiff's instruction number two as follows: “And the increased dangers arising from such defects.” Substantially the same instruction was approved by this court in Flynn v. Ry., 78 Mo. 195. Mr. Wood, in his work on Master & Servant, section 376, says: “ But not only the defects, but the danger must be known to him ( the servant).” (2) Plaintiff's instruction (No. 3), correctly declared the law. (3) Plaintiff's fourth instruction, on the matter of damages, was proper. Whalen v. Ry., 60 Mo. 325. (4) Defendant's objection to the instruction given by the court of its own motion, is not well taken. It was in the exact form as asked by defendant, except the addition of the words: “At the point which occasioned the injury.” This addition was a proper one, and besides it conformed the instruction to the remainder of it, and also to number three, given for defendant. Nor is the instruction objectionable as submitting to the jury to determine, as a question of fact, the proximate cause of the accident, for on appellant's own statement the proximate cause was not an unquestioned fact. Henry v. Ry., 76 Mo. 293. Mere general knowledge of defects on the part of a brakeman is not sufficient to bar a recovery; he must have had knowledge of the particular defect causing the injury. Porter v. Ry., 71 Mo. 80. (5) The doctrine of imputed knowledge of defects, as urged by appellant, does not apply in this case for a number of reasons: ( a) The evidence does not show that the defect in the frog, which caused the injury, was an obvious one at all, and certainly does not show that it was sufficiently obvious to bring it within the rule sought to be invoked. Keegan v. Kavanaugh, 62 Mo. 232; Conroy v. Vulcan Iron Works, 62 Mo. 39; Stoddard v. Ry., 65 Mo. 520. ( b) The actual knowledge, even of the plaintiff, of the defect in the plate was not sufficient, under the circumstances, to charge him with contributory negligence, as the act of coupling, in which he was engaged, required his whole attention and thought. Plank v. Ry., 60 N. Y. 607; Greenleaf v. Ry., 27 Ib.; Wharton on Neg., sec. 219. ( c) The instructions asked by defendant, as to obvious defects, really imposed on plaintiff the duty of inspection, which the law does not require. ( d) They also infringe on the rule that defendant is not guilty of contributory negligence so as to bar a recovery, “where the servant incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonable to suppose that it may be used with great caution and skill.” Stoddard v. Ry., 65 Mo. 521; Snow v. Ry., 8 Allen, 441; Patterson v. Ry.,76 Pa. St. 393. (6) The verdict was not excessive. Harrold v. Ry., 24 Hun, 184; Schultz v. Ry., 46 N. Y. Sup. Ct. 212; Shaw v. Ry., 8 Gray, 45; Whipple v. Co., 2 Story's Rep. 670; 2 Sedgwick on Damages (7 Ed.) 653.

BLACK, J.

This suit was begun in 1874, because of personal injuries received by the plaintiff in 1872. On the first trial he had judgment for eight thousand dollars, which was reversed on defendant's appeal (71 Mo. 514). The pleadings were amended, and on the second trial there was a verdict and judgment for plaintiff for twenty-five thousand dollars, from which defendant again appealed.

The plaintiff, seventeen...