Holmes v. Atchison, Topeka & Santa Fe Railroad , 48 Mo. App. 79 ( 1891 )

Ellison, J.

Plaintiff was a fireman on that division of the defendant’s railroad extending from Ft. Madison, Iowa, to Marceline, Missouri. Defendant’s freight trains are run by telegraphic train orders delivered in duplicate to the engineers and conductors of the trains concerned. The evidence shows that it is the custom of the defendant to require its conductors to preserve such orders as are given to them, but that the orders given to the engineers are not preserved. On the twentieth of September, 1890, plaintiff was firing a freight train running west from Ft. Madison, which train was known as second 35. The engineer on said train was one Joslyn. At Ethel station orders were given to the engineer and conductor of said train 35 to. sidetrack at Hart station, and meet first 36, a freight train going in the opposite direction. Engineer Joslyn failed to comply with this order, but ran by Hart •station and collided with first 36, resulting in the injury •of which plaintiff complains,

The petition charges that the t£ collision was caused by the recklessness, carelessness and negligence of one . Joslyn, the engineer, servant and agent of the defendant,. in charge of the locomotive pulling said train, number 35, in failing, neglecting and refusing to sidetrack and hold said train number 35, at Hart station, as was his •duty to do; that the injury to plaintiff aforesaid resulted to him solely through the carelessness, negligence and default of the defendant in this, that the said Joslyn was reckless, careless and negligent, and wholly unfit to control and manage said locomotive, all of which facts the defendant well knew long prior to the injury of plaintiff as aforesaid.”

Defendant complains of the following instruction given for plaintiff : “ The court instructs the jury that the terms ‘careless,’ reckless’ and ‘negligent’ as used in the preceding instruction do not imply lack of skill •or capacity, but simply a wilful disregard of ordinary prudence. And although you may believe Joslyn to have possessed all the qualifications necessary in a competent and skilled engineer, yet if it has been proven that he was wilfully careless, negligent and reckless in running his engine before the injury to plaintiff, and that the defendant company knew of such carelessness, negligence and recklessness before the injury to plaintiff, then the mere fact that Joslyn may have been competent and skilful constitutes no defense to this action.” The objection is that the petition is based on the carelessness and negligence of the engineer, and that this instruction permits a recovery for the wilfulness of the engineer. In other words an action for negligence is by this instruction, it is said, changed into an action for a wilful act. And to sustain the objection we axe cited to the cases of Bindbeutal v. Railroad, 43 Mo. App. 463, and O'Brien v. Loomis, 43 Mo. App. 29. These cases cannot be fairly likened to the case under consideration. What is said to have been done by the'trial court in this case was done in those cases. But this case is unlike those. If there is error in the instruction it is against the plaintiff, for in it the court in effect tells the jury that the negligence in this case must not be such as arises from mere thoughtlessness or inattention, but must arise from conduct which tbe engineer knew was imprudent. I can see no reason why a man may not wilfully do an imprudent or negligent act from which injury results, and yet not intend to do the injury. An ■engineer may deliberately turn his back to the engine without intending to kill anyone on the track. Or a man may knowingly walk into ’ a powder house with a lighted cigar without intending to cause .an explosion. We rule the objection against the defendant.

The question of plaintiff’s alleged contributory negligence in not reading the train order was submitted to the jury. The facts and circumstances would not have justified the court in declaring, as a matter of law, that he was guilty of negligence. So we think the point made as to the admission of the train order is not well taken. Sufficient foundation was laid to justify the court’s action in this respect.

A remittitur of $300 was made on the suggesfion of the court below, and the point is made that if the verdict was so excessive as to suggest a remittitur that it should have' been set aside in toto. • The case of Gurley v. Railroad, 104 Mo. 211, is cited to sustain this point. From an expression in that case it is not -clear whether Judge Gantt is speaking for himself or the court, but,' however that may be, what he did say is not applicable to the trial court.

Though the remittitur was made it does not appear in the judgment, which is for the full amount of the verdict. We will, therefore, direct that on a formal remittitur of $300 being made, the judgment will be affirmed for $1,200.

All concur.