Wampler v. Atchison, Topeka & Santa Fe Railway Co.

• Citation: 190 S.W. 908,269 Mo. 464
• Parties: JOSIAH B. WAMPLER v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
• Decision Date: 21 December 1916
• Court: United States State Supreme Court of Missouri

190 S.W. 908

269 Mo. 464

JOSIAH B. WAMPLER v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Supreme Court of Missouri

December 21, 1916

Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.

Reversed.

Thomas R. Morrow, Cyrus Crane, George J. Mersereau and John H Lathrop for appellant.

(1) The peremptory instructions should have been given. There was no proof of any actionable negligence. The jerk or jolt of the train was not unusual or violent and therefore not negligent. Hedrick v. Railroad, 195 Mo. 104; Waite v Railroad, 165 Mo. 612; Erwin v. Railroad, 94 Mo.App. 289; Bartlett v. Railroad, 148 Mo. 124; Howell v. Railroad, 149 Mo.App. 621. (2) The instruction given on behalf of plaintiff was erroneous. (a) It submitted the case on a theory not embraced in the pleading. (b) It failed to require the jury to find that plaintiff was in a position of danger and assumed this, or left it to be assumed, from the mere fact that plaintiff was dismounting from the train. (c) It departs from the petition in allowing negligence to be predicated on starting with a forward jerk, instead of a violent and unusual one as the petition alleged. (d) It erroneously assumed that the brakeman was controlling the movements of the train, whereas the conductor did that. These errors and wrong assumptions and omissions were not cured in the instruction by the use of the words "carelessly" and "negligently." Koontz v. Kaufman, 31 Mo.App. 420; Hinzman v. Railroad, 182 Mo. 623.

Guthrie Gamble & Street for respondent.

(1) The motion for new trial contained no specific assignment of error on the giving or refusing of any instruction; and this leaves defendant without ground of complaint on account thereof. State v. Katz, 181 S.W. 425. (2) Instruction 1 is not erroneous in permitting the jury to find that the brakeman controlled the train by signal to the extent of causing its forward start by the "high-ball" he gave to the engineer. (a) Because it is common knowledge that such acts are within the scope of a brakeman's duties. (b) Because the direct and circumstantial evidence that the brakeman gave the "high-ball" to the engineer, and what followed, warrant the conclusion that the brakeman did the thing which produced the result. (c) Because the failure of defendant to produce the evidence of the brakeman, or any of its trainmen, or to account for not doing so, raises a presumption that the brakeman by his "high-ball" signal did cause the jerk. Packing Co. v. Enzenperger, 77 Kan. 406; Kirby v. Talmadge, 160 U.S. 379; Kirk v. Middlebrook, 201 Mo. 245; Johnson v. Railroad, 150 Mo.App. 304; Powell v. Railroad, 255 Mo. 420; 3 Ency. Evidence, p. 81. (3) The court rightly refused to direct a verdict for defendant. (a) Because the evidence warranted a finding that the jerk, if not unusual, at least was unnecessary, and the product of a negligent failure to exercise the care which defendant owed to plaintiff as a passenger-employee. McGee v. Mo. Pac. Ry. Co., 92 Mo. 208; Haas v. Railroad, 111 Mo.App. 706; St. Clair v. Railroad, 122 Mo.App. 519; Railroad v. Larussi, 161 F. 66; Mitchell v. Railroad, 132 Mo.App. 143; Tinkle v. Railroad, 212 Mo. 445. (b) Because the negligence pleaded was the negligence proven. Leslie v. Railroad, 88 Mo. 50; Ridenhour v. Cable Ry. Co., 102 Mo. 270; Cobb v. St. Ry. Co., 149 Mo. 135; Choquette v. So. El. Ry. Co., 152 Mo. 257; Duffy v. Transit Co., 104 Mo.App. 235; Senf v. Railroad, 112 Mo.App. 74; Nelson v. Met. St. Ry. Co., 113 Mo.App. 702; Harrison v. Lakenan, 189 Mo. 581; Smith v. Fordyce, 190 Mo. 1; Green v. Met. St. Ry. Co., 122 Mo.App. 647; Peck v. Traction Co., 131 Mo.App. 134; Shinn v. United Rys. Co., 248 Mo. 173; Knight v. Donnelly Bros., 131 Mo.App. 152; Crawford v. Stock Yards, 215 Mo. 394. (c) Because the variance, if any, between the petition and the proof, did not amount to failure of proof within Sec. 2021, R. S. 1909, and defendant waived any question of lesser variance by demurring to plaintiff's evidence instead of objecting to being put upon its defense and filing the affidavit, in compliance with Sec. 1846, R. S. 1909. Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; Cobb v. St. Ry. Co., 149 Mo. 135; Choquette v. So. El. Ry. Co., 152 Mo. 257; Fisher & Co. v. Realty Co., 159 Mo. 562; Franklin v. Ry. Co., 97 Mo.App. 473; Litton v. Ry. Co., 111 Mo.App. 140; Hensler v. Stix, 113 Mo.App. 162. (4) The verdict was for the right party and should not be reversed in the absence of plainly prejudicial error. R. S. 1909, secs. 1794, 1831, 1846, 1847, 1850, 1865, 2021, 2082, 2119; Noble v. Blount, 77 Mo. 235; Sherwood v. Railroad, 132 Mo. 339; Barkley v. Cemetery Assn., 153 Mo. 300; King v. King, 155 Mo. 406; Bragg v. Railroad, 192 Mo. 331; Green v. Terminal Assn., 211 Mo. 18; Trainer v. Mining Co, 243 Mo. 359; Wicecarver v. Ins. Co., 137 Mo.App. 247; Shinn v. United Rys. Co., 248 Mo. 173. (5) The abstract of the record proper does not show when the motion for new trial was filed, and hence no error in the giving or refusing of instructions is available to defendant. Harding v. Bedoll, 202 Mo. 625; R. S. 1909, sec. 2025.

GRAVES, C. J. Woodson, Faris and Blair, JJ., concur in paragraphs three and four, and in the result; Revelle, J., concurs in paragraph 4, and in the result, and concurs in the separate concurring opinion of Bond, J.; Bond, J., concurs in separate opinion; Walker, J., dissents in separate opinion.

OPINION

In Banc.

GRAVES C. J.

This is an action for personal injuries wherein the damages are alleged to be $ 25,000.

The action is predicated on the relationship of master and servant, and not upon the relationship of passenger and carrier. It is also predicated upon certain Kansas statutes relating to masters and servants, which are specifically pleaded. It stands admitted in the record that defendant is an interstate carrier. After specifically pleading the Kansas statutes, and invoking them as the foundation for his right of recovery, the petition then proceeds, as follows:

"On May 2, 1912, in said town of Quenemo, while plaintiff, in defendant's service, was dismounting from one of defendant's trains, said train was suddenly started forward with a violent and unusual jerk, whereby plaintiff was thrown down and run over by said train, and his left leg destroyed, thereby causing plaintiff great suffering, loss of earnings and earning power, and putting plaintiff to an expense of not less than two hundred and fifty dollars for surgical and medical attendance, nurse hire and medicine in endeavoring to be cured of his injuries.

"Said injuries are permanent, and ever since their infliction upon plaintiff have caused him great suffering which will continue so long as plaintiff lives. Said injuries were produced by defendant's negligence.

"Said negligence of defendant was in that defendant, through its agents and servants in charge of said train, carelessly and negligently caused the same to start forward with a sudden jerk, whereby the results aforesaid were produced, and in the further fact that defendant after it could, by ordinary care, have known, and did know, of plaintiff's danger, still could and should have avoided injuring plaintiff by refraining from doing the things which it is above alleged defendant did, and by stopping said train after it knew that plaintiff had been thrown down.

"By reason of the facts aforesaid plaintiff has been damaged in the sum of twenty-five thousand dollars.

"Wherefore, plaintiff prays judgment against the defendant in the sum of twenty-five thousand dollars, with costs of suit."

The divisional opinion correctly outlines the further facts, thus:

"The plaintiff at the time of his injury was employed by defendant to post signs on gates opening on defendant's right of way. He was directed to post these signs along the right of way of defendant's road between the towns of Quenemo and Osage City in the State of Kansas. He went to the conductor of a through freight train at Ottawa and asked permission to ride thereon with his tools and material to the town of Quenemo. Permission was given, but he was informed that the train would not stop at Quenemo; but at plaintiff's request the conductor said he would slow down there to enable plaintiff to get off. A bundle of signs and a number of tools were placed on a flat car in the train and plaintiff was told that he could ride thereon. He did so, and while en route engaged in conversation with a brakeman who informed him that he thought the train would stop at Quenemo to take water. When the train neared that town it slowed down, as the conductor had informed plaintiff would be done, and the latter threw the gate signs and a bundle of wire off of the flat car, and gathered up his tools and dinner bucket and proceeded to climb down the stirrup of the car so as to alight when the train stopped at the water tank, if it did so. In one hand he held a dinner bucket, and in the other a brace, bit and clam hammer. While he was in this position the brakeman hallooed at him several times to get off and motioned to him with his hand to the same effect. He did not do so, and the brakeman signaled the engineer to increase the speed of the train. As a result, plaintiff, in attempting to alight, fell under the wheels and one of his legs was so injured that amputation became necessary. The testimony, which is that of plaintiff alone, is definite that he was not attempting to jump off the train, but that he fell off of same.

"The defendant offered no evidence on the ground that the negligence charged in the petition was not established."

The case was submitted to the jury on the following instruction for plaintiff:

"If you find and believe from the evidence that on or about the 12th day of May, 1912, the plaintiff...