Winn v. Kansas City Belt Railway Co.

• Decision Date: 13 November 1912
• Citation: 151 S.W. 98,245 Mo. 406
• Parties: RUPERT WINN, by his Next Friend, v. KANSAS CITY BELT RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

151 S.W. 98

245 Mo. 406

RUPERT WINN, by his Next Friend, v. KANSAS CITY BELT RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

November 13, 1912

Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.

Affirmed.

M. A Low, Paul E. Walker, Sebree, Conrad & Wendorff, W. F. Evans and Sam B. Sebree for appellant.

(1) The court committed error in refusing to give the demurrer to the evidence, and the instruction in the nature of a demurrer to the evidence, for the reasons: (a) The act of the watchman in attempting to remove the plaintiff from the ladder on the car was not proven to be within the scope of his employment. Drolshagen v. Railroad, 186 Mo. 258; Sherman v Railroad, 72 Mo. 62; Marcum v. Railroad, 139 Mo.App. 217; Farber v. Railroad, 32 Mo.App. 378. (b) The burden was upon plaintiff to prove that the injury to him was occasioned by the negligence of the defendant, and this he failed to do. Bolin v. Railroad, 108 Wis. 333; Mugford v. Railroad, 173 Mass. 10; Lillis v. Railroad, 64 Mo. 464; Randolph v. Railroad, 129 Mo.App. 1. (c) The plaintiff was a trespasser and his resistance contributed to cause him to fall from the train. Hutchison on Carriers, Sec. 593; 1 Thompson Com. Law Neg., Secs. 206, 7, 8; Railroad v. Swope, 115 Ala. 287; Moore's Case, 38 S.C. 1; Railroad v. Gants, 38 Kan. 608; Hall v. Railroad, 15 F. 7. (d) The charge of negligence in the petition was a joint charge against three corporations, and there was a total failure of proof of any joint negligence. In such case as here shown, there being no pretense in the evidence of joint wrong or concurrent act by defendants producing injury to plaintiff, there is no separate liability of any defendant for its separate wrong, or tort. The proof failing, as it does, to show any joint, concurrent act or wrong, the defendant's demurrers to the evidence should have been sustained. Secs. 1734, 2772, 5431, R. S. 1909; Otrich v. Railroad, 154 Mo.App. 430; Laughlin v. Powder Co., 153 Mo.App. 508; Barton v. Barton, 119 Mo.App. 531; Timber Co. v. Railroad, 180 Mo. 463; Livesay v. Bank, 36 Colo. 526; Bank v. Reynier, 41 Pa. S.Ct. 1; 15 Ency. Pl. & Prac. 502; Howard v. Traction Co., 195 Pa. St. 391; Wiesh v. Traction Co., 200 Pa. St. 148; Railroad v. Eggman, 71 Ill.App. 42; Forsell v. Copper Co., 38 Mont. 403; Meyer v. Railroad, 120 Mo.App. 292; Hoxie v. Nadine, 123 F. 379; Nunnich v. Railroad, 203 Pa. St. 632. In the case made by the petition defendant would be entitled to contribute from the Terminal Company, but in the case submitted to the jury there could be no contribution. Laughlin v. Powder Co., 153 Mo.App. 508; Paddock v. Rice, 179 Mo. 480; Mulderig v. Railroad, 116 Mo.App. 655; Eaton & Prince Co. v. Trust Co., 123 Mo.App. 117; Hubbard v. Railroad, 173 Mo. 249; Denta v. Morrison, 160 Mo. 581; Bride v. Railroad, 192 Mo. 331; Stanley v. Railroad, 114 Mo. 623. (2) The court committed error in giving instruction 1 on the part of the plaintiff. This instruction leaves out of consideration the act of plaintiff in resisting the watchman, and also does not require a finding that the watchman was within the scope of his employment in his effort to remove the plaintiff from the car. (3) The petition does not state a cause of action, in that it does not charge any negligence.

A. F. Smith, Boyle & Howell, Joseph S. Brooks and Guthrie, Gamble & Street for respondent.

(1) The act of the watchman in removing the plaintiff from the moving car was the act of the defendant. Haehl v. Railroad, 119 Mo. 325; Meade v. Railroad, 68 Mo.App. 92; Curtis v. Railroad, 99 Mo.App. 502; Boden v. Railroad, 108 Mo.App. 696; Compher v. Railroad, 127 Mo.App. 553; Brill v. Eddy, 115 Mo. 596; Knowles v. Bullene & Co., 71 Mo.App. 341; Houck v. Railroad, 116 Mo.App. 559; Garretzen v. Duenckel, 50 Mo. 104; O'Brien v. Railroad, 185 Mo. 263, 212 Mo. 59; Wahl v. Railroad, 203 Mo. 261; Barree v. Cape Girardeau, 197 Mo. 382; Chandler v. Gloyd, 217 Mo. 394. (2) Plaintiff sufficiently proved that his injuries were caused by the negligence of defendant. Railroad v. Hock, 66 Ill. 238; Brill v. Eddy, 115 Mo. 596; Kreuger v. Railroad, 84 Mo.App. 358; Johnson v. Railroad, 112 Ia. 639. (3) There was no proper issue nor evidence in this case that plaintiff caused his own injury by an unlawful resistance of an attempt to properly remove him from defendant's train. Railroad v. Shaw, 86 F. 865; Brill v. Eddy, 115 Mo. 596. (4) The fact that plaintiff charged that the defendants named in the petition, with another defendant, caused his injuries, does not invalidate his judgment against the appellant only. Railroad v. Noland, 75 Kan. 691; Fulwider v. Gas Co., 216 Mo. 582; Noble v. Kansas City, 95 Mo.App. 167; Chlanda v. Railroad, 213 Mo. 244; Wahl v. Transit Co., 203 Mo. 261; Augustus v. Railroad, 153 Mo.App. 572; Wiggin v. St. Louis, 135 Mo. 558; Weathers v. Railroad, 111 Mo.App. 315; Wills v. Railroad, 133 Mo.App. 625; Stoller v. Railroad, 200 Mo. 107; Moudy v. Railroad, 149 Mo.App. 413. (5) The court committed no error in giving instruction 1 on behalf of plaintiff. (a) There was no error in omitting in that instruction to submit the issue of contributory negligence on the part of plaintiff. There was no plea of contributory negligence in defendant's answer. There was no substantial evidence of contributory negligence on the part of plaintiff. The court gave an instruction, at defendant's request, submitting that issue, and therefore it was not necessary to submit it in plaintiff's instructions. Owens v. Railroad, 95 Mo. 169; Meily v. Railroad, 215 Mo. 567, 588; Underwood v. Railroad, 125 Mo.App. 490; Johnston v. Railroad, 150 Mo.App. 304. (b) The instruction properly submitted the issue of whether the watchman was acting within the scope of his authority. (6) Plaintiff's petition properly charged negligence on defendant's part. A general allegation of negligence is sufficient as against a plea that the petition does not state a cause of action. Conrad v. DeMontcourt, 138 Mo. 311; LeMay v. Railroad, 105 Mo.App. 361; Deiter v. Zbaren, 80 Mo.App. 612; Johnson v. Railroad, 104 Mo.App. 588; Baskett v. Railroad, 123 Mo.App. 725. On objection to the sufficiency of a petition first made in the appellate court, every intendment is indulged in favor of the sufficiency of the petition. Sharp v. Railroad, 213 Mo. 517; Bragg v. Railroad, 192 Mo. 331.

BLAIR, C. Roy, C., concurs.

OPINION

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 thirteen 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 the 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 to 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.

I. It is said no negligence is charged. In view of the failure to demur and the statutory provision (R. S. 1909, Sec. 2119) that after verdict the judgment...