Williams v. Missouri Pac. Ry. Co.

• Decision Date: 08 February 1892
• Citation: 18 S.W. 1098,109 Mo. 475
• Parties: Williams v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

18 S.W. 1098

109 Mo. 475

Williams v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

February 8, 1892

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

Elijah Robinson for appellant.

(1) The court should have directed the jury to find for the defendant. Huffman v. Railroad, 78 Mo. 50; Wood on Master & Servant, sec. 419, p. 800; Zumwalt v Railroad, 35 Mo.App. 661. The burden of showing incompetency on the part of Clark, and notice of this fact to defendant, rested on plaintiff. Murphy v. Railroad, 71 Mo. 202; Lee v. Works, 62 Mo. 565; Moss v Railroad, 49 Mo. 167; Shearman & Redfield on Negligence sec. 99; Railroad v. Sullivan, 63 Ill. 293. There is an entire want of evidence tending to show that the accident was occasioned, either by intoxication on the part of Clark at the time the accident occurred, or by reason of any effect his previous habits of intoxication had produced on him, if such previous habits had in fact existed. Zumwalt v. Railroad, 35 Mo.App. 661; Mathiason v. Mayer, 90 Mo. 585; Harlan v. Railroad, 65 Mo. 25; Henry v. Railroad, 76 Mo. 293. (2) The plaintiff's first instruction should not have been given. First. It assumed that plaintiff was, at the time of the accident, exercising ordinary care, instead of submitting to the jury the question as to whether he was, in fact, exercising ordinary care. Stoher v. Railroad, 91 Mo. 509; Stocker v. Green, 94 Mo. 280; Kramer v. Mason, 96 Mo. 559; Liggett v. Morgan, 98 Mo. 39; Robertson v. Drane, 100 Mo. 273. Second. There was no evidence on which to base such an instruction. Third. It was too general and indefinite. It did not submit to the jury the question of the existence of any particular fact as to incompetency, but left them to form their own opinions as to what would constitute incompetency, without any guide or directions whatever. (3) The plaintiff's second instruction should have been refused, because there was no evidence tending to show that "previous habits of intemperance" had produced any "effect" on Clark, which rendered him incompetent. (4) Instruction, numbered 1, given by the court, while probably correct as an abstract proposition of law, was not based on any evidence in the case. There was not a particle of evidence tending to show that Clark had used intoxicating liquor to such an extent as to render him incapable of exercising ordinary care as a locomotive engineer. (5) Defendant's instruction, numbered 2, should have been given. If defendant had reason to believe, either from personal observation, or from inquiry of persons likely to know, that Clark was fit and competent, then it was not liable. Moss v. Railroad, 49 Mo. 167. (6) Defendant's instruction, numbered 3, should have been given. There is no pretense that defendant had actual knowledge of Clark's incompetency, if he was incompetent, and if plaintiff had equal means of knowledge with defendant he ought not to recover. Cummins v. Collins, 61 Mo. 520; Williams v. Clough, 3 H. & N. 258; Malone v. Hawley, 46 Cal. 409; Porter v. Railroad, 71 Mo. 66; Doyle v. Railroad, 41 Am. & Eng. R. R. Cases, 376. (7) The court should have given defendant's instruction, numbered 4. It contained a full and fair definition of the term "ordinary care." (8) The motion in arrest should have been sustained. The plaintiff's petition failed to show that, while continuing in the service of defendant, a fellow-servant of the engineer, Clark, he did not know of Clark's alleged incompetency. Railroad v. Stupak, 28 Am. & Eng. R. R. Cases, 323. (9) The evidence shows that plaintiff had no cause of action, and the judgment should be reversed without remanding the case. Powell v. Railroad, 76 Mo. 80; Lennox v. Railroad, 76 Mo. 86; Schenck v. Sautter, 73 Mo. 46; Quay v. Lucas, 25 Mo.App. 4; Moore v. Hutchison, 69 Mo. 429.

E. A. Andrews and John W. Beebe for respondent.

(1) There was abundant evidence showing Clark was an unfit and incompetent person to be intrusted with the duties of a locomotive engineer, and that defendant's officers knew of the fact, or, by the exercise of reasonable care, might have known of it. (2) Once having established this incompetency and an act of gross negligence on his part resulting in the defendant's injury, the burden was upon the defendant to show that the negligence and injury were not referable to his incompetency, but to some other cause. Kean v. Copper Mills, 66 Mich. 227; Railroad v. Brooks, 57 Pa. St. 343; Maxwell v. Railroad, 85 Mo. 95. To say that Clark's negligent act could not properly be referred to his unfitness without proof that, at the time of the accident, he was in a state of complete intoxication, is to leave out of the question the gravamen of the charge made in the petition, viz., that, from a long-continued use and abuse of alcoholic stimulants his physical and nervous system had been affected to such an extent that he was not a fit and suitable person to be intrusted with the duties of a locomotive engineer. See authorities, supra, and Wood's Master & Servant [2 Ed.] 77; Shearman & Redfield on Negligence [4 Ed.] secs. 38-60; Rine v. Railroad, 100 Mo. 234; Abbott's Trial Evidence, sec. 84; Dowell v. Guthrie, 99 Mo. 665; Railroad v. Sullivan, 63 Ill. 293; Hilts v. Railroad, 55 Mich. 437. (3) Plaintiff's first instruction does not assume that plaintiff, at the time of the accident, was exercising ordinary care; that question was fairly and thoroughly submitted to the jury by both plaintiff and defendant in their instructions. (4) The criticism of plaintiff's second instruction is without merit. The evidence was conclusive that Clark's habits of intemperance had produced an effect upon him which rendered him unfit for his duties as locomotive engineer. The same remarks may be made in regard to the court's instruction, numbered 1. (5) The question whether, in the exercise of ordinary care, plaintiff might have known of Clark's incompetency, was submitted to the jury by both plaintiff and defendant in their instructions. (6) There was evidence sufficient to charge defendant with actual knowledge of Clark's habits of intemperance and unfitness, and this is assumed in defendant's own instructions. (7) It was not necessary that the petition, under our practice, should negative the knowledge of Clark's incompetency, by plaintiff. That was a matter of defense, and should have been averred in the answer. In no view can such a contention be made for the first time after verdict. Besides, as the answer denies Clark's incompetency, it thus of itself negatived the idea of Clark's knowledge, and is a matter of aider in pleading. Crane v. Railroad, 87 Mo. 588; Donaldson v. Butler Co., 98 Mo. 163; Stock Co. v. Wilder, 116 Ill. 100.

Black, J. Sherwood, P. J., concurs in the result.

OPINION

Black, J.

Plaintiff brought this suit to recover damages for injuries received while in the employ of defendant as head brakeman on a freight train on the defendant's branch road from Pleasant Hill to Nevada. The cause of action, speaking in general terms, is that plaintiff was injured by reason of the negligence of the engineer, who, it is alleged, was an incompetent and unfit person for the service, because of intemperate habits. Verdict and judgment for plaintiff.

The train gang was composed of Reed, conductor; Otis Clark, engineer; Joy, fireman; plaintiff, head brakeman, and two other brakemen. The train left Pleasant Hill in the forenoon of the third of December, 1886, and reached a station called Archie in the afternoon. There the train was sidetracked, and the conductor, engineer and fireman went with the engine to another station for water, and returned late in the afternoon. The plaintiff then coupled the engine to the train and got in the cab. From this station there was an up grade for two hundred yards, and then a down grade for at least one mile. In going over the hill the train broke in two, and some of the detached cars were derailed. The engine and eight cars attached to it went on for a mile or so and stopped. Plaintiff then left the cab and went to the car next to the rear one. As to what then transpired he says: "I gave Clark, the engineer, a slow signal to back up. He commenced backing, and, after going two hundred yards, I signaled him to stop. I could then see the derailed portion of the train. We were at least a half-mile from it. I stood over on his side of the train and kept giving him the signal to stop. He came faster and faster and ran into the wrecked cars, and that was the last I knew for a long time. I could see the cab of the engine, and there was nothing to prevent him from seeing the signals if he had looked. It was his duty to obey the signals, but he paid no attention to them. The speed was continually increasing until the collision." This witness testified, on a former trial, that he was standing on the middle of the car next to the rear one when he gave the signals.

The fireman says there was a wind and snow storm at the time of the accident, so that one could not see more than a car back from the engine; that he looked out from his side of the cab but could not see the signals. He states, however, that Clark said, "I see them over here," having reference to the signals.

There is a vast amount of evidence bearing upon Clark's intemperate habits. This evidence discloses these facts Prior to 1880 he ran a passenger locomotive on another road. From that date to his death in 1887 he ran a freight engine on the defendant's branch road, and during that time had his headquarters at Pleasant Hill. The evidence of the proprietor and porter of the hotel where he boarded, and two or three saloon keepers at that place, is to the effect that Clark was a habitual drinker from 1880 to his death;...