Foster v. Missouri Pacific Railway Co. , 115 Mo. 165 ( 1893 )

Barclay, J.

We entirely approve the rulings in the cause while in the second division, but deem it' proper in view of the earnestness of counsel in pressing upon our attention certain points not heretofore discussed to add some observations.

1. It is urged that the petition is fatally defective, and that the motion in arrest should have been sustained, for that no causal connection is alleged between' the negligent order and the injuries sustained by the plaintiff.

The material parts of the petition are quoted in the statement accompanying this opinion. No objection was made to their sufficiency until the trial, and then but the general one that the petition failed to state facts sufficient to constitute a cause of action.

Under the Missouri code of practice “in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed. Revised Statutes, 1889, sec. 2074. Moreover, generality in a charge of negligence is not a fatal objection to it after answer.

But it seems scarcely necessary to apply either of these propositions here. The allegations before us are so plainly intended to import that the negligent order of the roadmaster was the immediate cause of plaintiff’s injury, that any lengthy discussion of them is unnecessary.

2. Defendant further contends that the evidence fails to establish any proximate connection between the order and the injury, and that the demurrer to the evidence should, hence, have been sustained.

Assuming that the order should be treated as that of the defendant (a subject to be considered further on), did the evidence fairly tend to prove a causal connection? That is the full scope of our present inquiry, for the jury found upon the issue of fact that plaintiff’s injury “was solely the result of said Sheehan’s negligent and careless order,” and now we need merely to ascertain whether that finding has substantial support in the testimony.

It was in proof that Sheehan knew that the car was not yet unloaded of ties, and that he knew it was customary for men to mount the cars from the ground “most anywhere,” as he testified. With this knowledge, and observing plaintiff’s position on the north side of the track, eight or ten feet east of the end of the car he gave a sudden and imperative order, “All ■aboard!” in a manner and at a time which reasonably suggested that the train was about to move. In obedience to that order plaintiff ran along the north side of the track to board the car at the west end, and while so doing was struck in the back by a heavy railroad tie projected over the sides of the car by. employes who were also under the immediate direction of the same foreman.

Three or four other workmen were standing near plaintiff when the order was given. The others were nearer to the rear platform than he, and the available space there would not allow of plaintiff’s getting on immediately at that part of the car with them. Hence he started toward the other end, with the result indicated. The sideboards were three or four feet (according to different witnesses) above the level of the car. Plaintiff and others testified that from his position on the ground one could not see the ties that were being unloaded. Plaintiff declared positively that he believed that they had all been thrown out when the order was spoken. As the cars were at that spot to distribute these ties it was not an unreasonable inference that they had been unloaded when the foreman called plaintiff and the other men (previously engaged upon a different part of the work) to come aboard'.

In several instructions for defendant the court submitted in various forms the question of plaintiff’s exercise of reasonable care in the circumstances, and the verdict must be taken as a finding that he was not guilty of any want of such care. That conclusion is fully supported by the proof.

As persons are legally chargeable with the natural and probable consequences of their acts, we consider that it was obviously proper, upon the evidence above ■outlined, to submit to the triers of fact the issue whether the foreman’s order, as and when given, was •or was not characterized by a want of ordinary and reasonable care for the safety of the plaintiff, and whether or not, if negligent, the order was the immediate cause of his injury.

3. Defendant next questions the correctness of the instruction for plaintiff, in that it charges defendant with liability for the negligent order of Sheehan without requiring a finding that the latter had power to hire and discharge men. On that point the instruction simply calls for findings that “Sheehan by virtue of his employment and position had immediate control and direction of plaintiff and others engaged in work with plaintiff, and had power and authority to direct and control plaintiff in his work.”

Defendant’s contention is that the master should not be held answerable for negligent directions unless the managing employe is intrusted with the authority to hire and discharge and thereby to enforce obedience to his orders. But that contention ignores the principle on which the master’s liability in such circumstances rests.

It is part of his personal duty to direct the work Re has in hand, and, where it is complex (as that of railroading), to provide and enforce reasonable and necessary regulations of the labor engaged therein. Thus the'want of a reasonably sufficient ‘ ‘system” for carrying on a large enterprise (Smith v. Baker (1891), L. R. App. Cas. 325), or of needful rules for its management (Reagan v. Railroad (1887), 93 Mo. 348; 6 S. W. Rep. 371; Abel, Ex’x, v. President, etc. (1891), 128 N. Y. 662; 28 N. E. Rep. 663) has been held to form a basis for liability where injury to one servant, by the act of his fellow, resulted from such negligent-omission of duty by the employer.

But the master’s function of directing a large enterprise must of necessity be entrusted, as to many details, to subordinate employes. In exerting that function they perform the master’s part, and for their action (within the scope of that delegated authority, and as to those placed, under their orders) the master is responsible whether the superintending employe has or has not power to hire and discharge, and whatever may be the title by which he is designated. Miller v. Railroad (1892), 109 Mo. 350.

We regard the instruction as free of error in this particular.

4. Nor did the court err in ruling upon the instruction for a non-suit in respect to the question of common employment. The court, in one of defendant’s instructions, told the jury that “the workmen on the car, pitching ties therefrom, were fellow-servants of plaintiff,” and that defendant was not liable to plaintiff for negligence or carelessness on their part. This was without doubt correct, for these employes were all working together under one common directing superior. But that superior was not the fellow-servant of his subordinates, in so far as, and while he exercised the authority to direct them in their labor, as has been settled by many unanimous judgments of which but a few need be cited. Russ v. Railroad (1892), 112 Mo. 45; 18 L. R. A. 823; Stephens v. Railroad (1888), 96 Mo. 207; Dowling v. Allen (1881), 74 Mo. 14.

5. Defendant then objects to the plaintiff’s instruction because it calls for a finding “that it was known to the said Sheehan and the other workmen to be dangerous for anyone to attempt to board said car until all said ties had been unloaded.” The objection is that the knowledge of the other workmen is immaterial and should not have been brought into prominence as a factor in the controversy.' This may be conceded, yet it does not follow that defendant was prejudiced by the introduction of the words, “and the other workmen,” into the instruction. That fact was not outside the evidence, was entirely harmless; and, moreover, error can not, generally, be predicated on the action of the trial judge in calling for a finding by instruction upon some-immaterial fact, where the substantive facts essential to plaintiff’s case are duly submitted and found. Such an error should be disregarded when (as here) it plainly appears to have had no prejudicial bearing upon the substantial rights of the adverse party upon the merits of the case. Revised Statutes, 1889, secs. 2100, 2303.

6. The same remarks dispose of another objectionto the instruction for that it called for a finding that‘ ‘plaintiff had reason to believe and did believe that said ties were all unloaded and that the danger of boarding said car had passed.” There was direct testimony of that belief by plaintiff and it had an important bearing on the issue of his contributory negligence. Alcorn’s case (1891), 108 Mo. 104. But it was not a fact essential to create a liability for negligence on defendant’s part in the premises, and the reference to it might have been eliminated without impairing the force or effect of the instruction so far as it bore upon the latter issue. The instruction merely required the jury to find unnecessarily that additional fact to warrant the conclusion that defendant was negligent.

7. Error is also assigned upon rulings in admitting testimony, viz:

First. Upon plaintiff’s redirect examination, the following:

“Q. When you started to get on the car, you told Mr. Logan you started on the run? A. I did.

UQ. You supposed the ties were all unloaded? (The defendant objected to what he supposed.)

“Q. What if anything led you to believe those-cars were unloaded at that time? (The defendant objected to what he believed. The court overruled the-objection; to which action of the court the defendant then and there excepted and saved its exception at the-time.) A. Because Mr. Sheehan had hallooed ‘all aboard!’ ”

It will be noticed that the question did not ask for plaintiff’s belief, but what caused it; and that his-reply merely stated a fact already in evidence without, objection, and afterwards testified to by several others. Plaintiff, on his cross-examination, had stated (in answer to a question by defendant’s counsel) that he-“supposed the ties were all out of the car;” and there-was no impropriety in asking him what led to that, belief. But the answer was harmless, view the question as we may, for it elicited merely the repetition of a fact substantially conceded throughout the trial,, and abundantly proven by many witnessess.

Second. The second ruling is thus shown by the-record, viz:

“Q. Tell the jury whether or not it was possible-for a man, in the position in which you saw Foster at the time he staggered, to have seen the tie — to have seep whether or not the ties were unloaded? A. No, sir. (The defendant objected as incompetent, irrelevant- - and immaterial. The court overruled the objection; to which action of the court the defendant then and there at the time excepted and saved its exception at the time.)”

All that need be said of this point is that it comes-within reach of the principle declared by this court in the ruling that, where a party “had an opportunity to interpose an objection, he cannot take the chances that the testimony will be favorable to him and, when it turns out otherwise, raise his objection, but must be held to have waived it.” Maxwell v. Railroad (1884), 85 Mo. 106.

8. Finally, the amount of the verdict is said to be excessive, and for that reason a reversal is asked. That plaintiff was seriously hurt is established by overwhelming and undisputed evidence. The jury found $10,000 to be the reasonable value of his pain, loss of time, etc., and permanent disability to labor; and the trial judge, who saw plaintiff and heard his witnesses face to face, has approved that verdict.

At the moment when plaintiff was struck on the back by the tie he was knocked to the ground and remained unconscious for some time. He was removed soon after to defendant’s hospital at Kansas City. He was examined by several experts, among them by Dr. W. P. King, an eminent physician and surgeon of defendant’s medical staff. He testified that plaintiff was ‘‘suffering from almost complete motor and sensory paralysis of the left side,” caused by the breaking of a small blood vessel in the brain, that he regarded plaintiff’s chances for improvement very good, but not for his complete restoration to as healthy a condition as he was in before.

The entire testimony in the case coincided to the effect that plaintiff was afflicted with paralysis of the left side as described by Dr. King.

Plaintiff asserted that he was sound and well before this mishap; that it had totally deprived him of the use of his left arm, and, to a great extent, of the use of his left leg; the former he is unable to raise without catching hold of it with his other hand; that the left side of his tongue is thick and heavy, and his speech impaired; that he suffers with pain in his left lung in bad weather, and from incontinence of urine, all in consequence of the accident. He has been unable to resume his former manual labor on account of the paralysis.

Two physicians, Dr. J. P. Walker and Dr. 0. M. Decker, who were witnesses for plaintiff, declared that his injury was permanent, giving their reasons for that opinion.

In view of the nature and extent of his damage, we are all of the opinion that tbe amount of the verdict does not call for any revisory action by this court, without referring to any other proposition that may be considered by any of us applicable to this branch of the case.

The judgment is affirmed,

Black, C. J., Brace, Gantt', Macearlane, Sherwood and Burgess, JJ., concurring.