Herriman v. Chicago & Alton Railroad

Philips, P. J. We are asked to review the evidence and to reverse this judgment on the ground that the evidence does not support the verdict. The rules of practice, in this respect, are now well settled. A demurrer [443] to the evidence admits the truth of the facts testified to by the plaintiff’s witnesses, and admits everything which the testimony conduces to prove, though it be but in small degree as distinguished from a “mere scintilla.” And in passing upon the demurrer, the court must make every inference of fact in favor of the plaintiff, which the evidence warrants, and which the jury might, with propriety, have inferred. Noeninger v. Vogt, 88 Mo. 589; Fisher v. Railroad, 23 Mo. App. 201; Brink v. Railroad, 17 Mo. App. 177; Wilson v. Board of Education, 63 Mo. 136. And where the plaintiff’s evidence makes out & prima facie case for him, although it be rebutted by the defendant’s evidence, by what may, to the court, appear to be the greater weight, it is error for the trial court to take the case from the jury. In such conjuncture it is the province of the jury to pass upon the weight of evidence and the credibility of the witnesses. Wood v. Insurance Company, 50 Mo. 112. I. It is true that the plaintiff, in accepting employment from defendant in the capacity of a section hand, assumed to himself all the risks and hazards of life and limb incident to such work, performed in the usual way, free from the interference or negligence of those placed over him. But- where, as in this case, he works under the immediate supervision and direction of a superior officer, or agent, who directs the manner of executing the particular work, and the servant, without contributory negligence on his part, is injured while obeying his superior, the company is liable, provided the conduct of the superior had in it the element of negligence or want of proper skill. It is the plain duty of 'the servant, in such relation, to obey the direction and command of his superior, unless the act directed be so obviously dangerous to his senses as to make obedience rashness, amounting to contributory negligence on his part. Crediting, as we must for the purpose of this discussion, the testimony of the plaintiff, the handling of such a ponderous rail was necessarily attended with [444] •some risk. So much so that the foreman himself testified, in effect, that snch a rail should never be thrown, but laid down, and, therefore, he had warned his men against the act. Knowing, as the foreman admits he did, that to throw the rail might be attended with bad consequences, if he did command the men to lift it up and throw it “hard,” he was guilty of culpable negligence. His relative position to the rail at the instant was such, crediting the plaintiff’s testimony, as to have enabled him to see the manner of the handling, and the condition of the stationary end of the rail. It was a question for the jury to answer, if he was so situated .and looking on, and knowing the danger of handling the rail thrown, whether he would not even have been derelict in duty to his employes had he remained silent. Situated as the plaintiff was, with one or more men between him and the stationary end of the rail, and having the right to infer from the position of the foreman that he could probably see and know whether the stationary end was so detached as to make it safe to throw, he was justified in relying upon the vantage ground, as well as the superior experience and skill, of his overseer; and this, even though the plaintiff may have known from experience or observation that usually it was unsafe to throw the rail as he did. These are well-established rules of law as they stand to the plainest reason. Keegan v. Kavanaugh, 62 Mo. 230; Cummings v. Collins, 61 Mo. 520; Stephens v. Railroad, 86 Mo. 221; Crane v. Railroad, 86 Mo. 588; Dowling v. Allen, 74 Mo. 13; Wood on Master and Servant, sects. 352, 354, 387; Reed v. Northfield, 13 Pick. 98. And in all such cases, where there is any substantial doubt as to the servant’s knowledge of the particular peril, a demurrer to the evidence is not permissible. Contributory negligence is a matter of affirmative defence. Matthew v. Railroad, 26 Mo. App. 75; Petty v. Railroad, 88 Mo. 306. The demurrer to the evidence was properly overruled, especially so when being in [445] terposed after the evidence of the foreman had been introduced by the defendant. II. Criticism is made upon the first instruction, given on behalf of the plaintiff. It is alleged against it. that it did not leave the question of negligence to the-jury, but assumed, as matter of law, that the order of the-foreman was negligently given, if the rail, when thrown, was caught under another rail, or was in a position to be-caught. The instruction goes further, and required ‘ ‘ that said boss saw the position of said rail, or could have-seen it,” etc. This instruction under a different state of' facts would be obnoxious to the objection interposed. But in view of the defendant’s own evidence,' to the effect that the foreman knew it was not safe to throw the rail at all, and, therefore, he had frequently advised his men not to throw a rail under such circumstances, it would seem that it was no longer a matter in dispute that it’ was negligence to “direct plaintiff to take hold of the rail and throw the same;” especially, when “saidrail so thrown was caught under another rail, .or was in a. position to be caught when raised and thrown.” The assumption in an instruction of an issuable fact conceded by the other party, or about which there can be no-reasonable controversy, is not erroneous. Field v. Railroad, 80 Mo. 206, and cas. cit. So it was held in Hall v. Railroad (74 Mo. 298), that an'instruction declaring the duties of a section foreman to be what he, in effect, testified they were, is not objectionable, there-being no contradictory evidence. The defendant not having tendered any issue in its answer as to plaintiff’s contributory negligence, and there being little, if any, evidence to support it, and yet-having had the full benefit of such matter in an instruction given it by the court, the criticism made on plaintiff’s instruction, that it should have been qualified by submitting to the jury the question of plaintiff’s negligence comes with little tolerance or force. [446] III. While we feel constrained to say that plaintiff’s canse was much impaired by the defendant’s evidence, and the weight of evidence in onr opinion was with the defendant, we cannot invade the province and usurp the function of the jury to pass on the weight of evidence and the credibility of the witnesses. The judge should keep out of the jury-box. It follows that the judgment of the circuit court should be affirmed ; the other judges concurring, it is accordingly so ordered.