Winn v. Kansas City Belt Ry. Co.

• Citation: 245 Mo. 406,151 S.W. 98
• Parties: WINN v. KANSAS CITY BELT RY. CO.
• Decision Date: 13 November 1912
• Court: United States State Supreme Court of Missouri

151 S.W. 98

245 Mo. 406

WINN v. KANSAS CITY BELT RY. CO.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

1. PLEADING (§ 433)—PETITION—SUFFICIENCY AFTER VERDICT.

Under Rev. St. 1909, § 2119, forbidding the reversal of a judgment for want of any allegation on account of which omission a demurrer could have been maintained, a petition alleging that defendant operated a train, that, while plaintiff was standing in a position of safety on the train, defendant caused his removal therefrom and permitted him to fall under the train, is sufficient after verdict in the absence of any demurrer.

2. JUDGMENT (§ 239)—JOINT TORT—RECOVERY —ISSUES, PROOF, AND VARIANCE.

A plaintiff suing two or more persons as joint tort-feasors may recover against one alone, and this rule is not modified by Rev. St. 1909, § 1734, relating to actions in which a joint liability exists.

3. RAILROADS (§ 282)—INJURIES TO PERSONS ON TRAINS —NEGLIGENCE—QUESTION FOR JURY.

Where a flagman at a crossing, required to prevent boys from getting on trains at his crossing, forcibly jerked a boy from a car ladder supporting him, and permitted him to fall on the track, causing injury, the question of his guilt of actionable negligence was for the jury.

4. RAILROADS (§ 281)—INJURY TO THIRD PERSONS—NEGLIGENCE OF SERVANT—LIABILITY OF MASTER.

Where a flagman, who was required to prevent boys from getting on trains at his crossing, saw a boy get on a car ladder and almost immediately seized him, pulled him from the car, and caused him to fall on the track under the train, his act was within the scope of his employment, and the railroad company was liable for the resulting injuries.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Rupert Winn, by Clara M. Lamont, his next friend, against the Kansas City Belt Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sebree, Conrad & Wendorff, of Kansas City, M. A. Low and Paul E. Walker, both of Topeka, Kan., W. F. Evans, of St. Louis, and Lathrop, Morrow, Fox & Moore, of Kansas City, for appellant. A. F. Smith, Boyle & Howell, Jos. S. Brooks, and Guthrie, Gamble & Street, all of Kansas City, for respondent.

BLAIR, C.

This action was instituted in the circuit court of Jackson county by Rupert Winn, by next friend, against the Kansas City Belt Railway Company and the Kansas City Terminal Railway Company to recover damages for the loss of an arm and other injuries alleged to have resulted from defendants' negligence. At the close of his evidence, plaintiff dismissed as to the Kansas City Terminal Railway Company, and subsequent proceedings resulted in a judgment against the Kansas City Belt Railway Company, from which judgment this appeal is prosecuted.

The count of the petition on which recovery was had charges, among other things, that "defendants and some other railway company were operating a moving train on the tracks and road of the defendants under and by virtue of a license, permit, lease, or running arrangement, with or from said defendants," and "while plaintiff was riding on said moving train, which was running on the tracks and road of the defendants, * * * and, while he was standing in a position of safety on said train, the defendants and said lessee railway company caused the plaintiff to be removed therefrom in such a manner that plaintiff fell or was thrown under said moving train and his right arm, etc. * * * Plaintiff says that the conduct of the defendants and said lessee railway company in removing and causing to be removed the plaintiff from said train under the circumstances was negligent. Wherefore," etc. Appellant's answer was a general denial.

The injury occurred at Twentieth and Campbell streets in Kansas City, at which point appellant's road crosses Campbell street, where a flagman or watchman was and long had been stationed. A freight train was proceeding westward along appellant's tracks and across Campbell street when respondent, a 13 year old boy, in the flagman's presence, got upon the ladder at the side and near the end of one of the cars, and took a position with his feet in the stirrup and his hands grasping one of the rounds of the ladder. As this car passed over the crossing, the evidence tends to show the flagman stepped up behind respondent, seized hold of the belt of his trousers at the back, and pulled him from the car. At this juncture the flagman released his hold on respondent and the latter fell between the cars and upon or beside the rail, and his right arm was caught and crushed beneath the wheels. The evidence tends to show the flagman was old and weak. The evidence showed it was the flagman's duty to keep boys from getting on trains at his crossing, and that for years and in many instances he had exercised this authority. His own testimony is to this effect and is clearly susceptible of the further interpretation that his instructions were to see to it, generally, that no accidents happened at the crossing, and that he did whatever in his judgment would "protect the situation better." Appellant's superintendent testified it was the flagman's duty to "warn and prevent boys getting on trains, if he could," and that the same instructions were given all flagmen. For respondent one of appellant's former flagmen, in service in 1906, had testified the instructions were not to permit persons to get on trains at crossings.

1. It is said no negligence is charged. In view of the failure to demur and the statutory provision (section 2119, R. S. 1909) that after verdict the judgment thereon shall not be reversed "for the want of any allegation or averment on account of which omission a demurrer could have been maintained," nor "for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict," the objection comes too late. In the circumstances, appellant cannot now complain of a defective statement of the cause of action.

2. The petition charges joint negligence, but the evidence has no tendency to connect any save appellant with the injury, and appellant's counsel earnestly insist this constitutes a total failure of proof. The argument is, in substance, that, under a petition charging a joint tort, proof of a tort committed by one alone is insufficient to authorize judgment against even the guilty defendant.

In Winslow et al. v. Newlan et al., 45 Ill. loc. cit. 148, it was said that in actions of tort "it is a rule of practice, coeval with our system of jurisprudence, that a plaintiff may recover against as many, and only such, defendants as he proves to be guilty," and in Railway v. Laird, 164 U. S. loc. cit. 400, 17 Sup. Ct. 123, 41 L. Ed. 485, it was said that, since "in an action against joint tort-feasors recovery may be had against one, it follows that allegations alleging a joint relationship and the doing of negligent acts jointly are divisible, and that a recovery may be had where the proof establishes the connection of but one defendant with the acts averred." At common law, "in actions ex delicto a joint liability need not be proved, and consequently a misjoinder of defendants will not defeat a recovery." Volume 15, Ency. Pl. & Prac. p. 583, and cases cited. To these authorities may be added: Tompkins v. Railway, 66 Cal. 163, 4 Pac. 1165; Rome R. R. v. Thompson, 101 Ga. 26, 28 S. E. 429; Railway v. Duvall, 40 Ind. 246; Matthews v. Railway, 56 N. J. Law, 34, 27 Atl. 919, 22 L. R. A. 261; Railway v. Treadway, 143 Ind. loc. cit. 703, 40 N. E. 807, 41 N. E. 794; Krebs Hop Co. v. Taylor, 52 Or. 627, 97 Pac. 44, 98 Pac. 494; Railway v. Sheftall et al., 133 Fed....