McMullen v. Missouri, Kansas & Texas Railway Co.

Smith, P. J. This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. The plaintiff had judgment in the court below and the defendant has appealed. It is claimed by the defendant that the judgment ought to be reversed because the petition does not state facts sufficient to constitute a cause of action, in that no excuse is alleged for doing the work from which the injury resulted with the number of men therein charged to have been insufficient for the reasonable safety of those engaged in it. That pleading charges that the defendant carelessly and negligently failed to furnish a sufficient number of men to lift the rails and throw them from the track; that only three men were furnished when at least four were necessary to do the work with reasonable safety to defendant’s servants engaged in said work; that, in consequences, of defendant’s carelessness and negligence in failing to furnish a — 236 — sufficient number of men to do said work with reasonable safety to its employees, the plaintiff, as he and two others were endeavoring to throw a rail from the track, was injured by said rail falling back upon his foot, which was thereby crushed, and that this was caused and brought about by defendant’s negligently requiring three men to lift said rail and throw the same from the track, when at least four men were necessary to do said work with reasonable safety. It is the unquestionable law that it was the duty of the defendant to furnish a sufficient number of men to do the work in which the plaintiff was .engaged with reasonable safety to the plaintiff and his colaborers engaged therein. Thorpe v. Railroad, 89 Mo. 650; Stoddard v. Railroad, 65 Mo. 514; Fogus v. Railroad, 50 Mo. App. 250; Flike v. The Boston & Albany Railroad, 53 N. Y. 546; McKinney on Fellow Servants, p. 99, sec. 37. The petition alleged this duty and a breach thereof, which, coupled with the further allegation of an injury resulting from such breach, we think sufficiently stated a cause of action. If the performance of this duty by the defendant was waived by the plaintiff or if the defendant was excused from its performance for any other cause, this was a matter of defense, to be pleaded in the answer. Under the allegations of the petition it was only necessary for plaintiff to introduce evidence tending to prove the breach of duty on the part of defendant as alleged in his petition and that such breach was the proximate cause of his injury. If the defendant, as was the case, relied on the claim that the insufficiency in the number of the men to do the work was obvious or patent and that the danger arising therefrom was of such character as to raise the presumption that the plaintiff by-continuing to do the work under such conditions assumed the additional or increased risk, then such claim was — 237 — logically .a matter of defense. Fugler v. Bothe, 43 Mo. App. 44; s. c., 22 S. W. Rep. 1113; Thorpe v. Railroad, 89 Mo. 650; Stoddard v. Railroad, 65 Mo. 514. The petition we therefore hold was sufficient. The plaintiff’s evidence tended to prove that the number of men employed were insufficient to do the work in which he was engaged with reasonable safety and that, in consequence thereof, he was hurt. This, according to the principles just announced, was sufficient to establish his prima facie right of recovery, therefore the objection of defendant, taken by demurrer to the plaintiff’s evidence, to the effect, that it failed to prove any negligence of defendant or excuse on plaintiff’s part for doing the work with an insufficient number of men was properly overruled. The defendant objects that the plaintiff’s instructions did not cover the whole case in that they failed to mention the assumption of the risk by the plaintiff. The first of these given for plaintiff told the jury that it was defendant’s duty to furnish a sufficient number of men to do the work of removing the rails with reasonable safety to its employees, and that if it failed so to do, and plaintiff was injured in consequence thereof, he was entitled to recover, provided he was in the exercise of such care as a reasonably prudent person would have used under like circumstances, and was not guilty of contributory negligence, as defined in the instructions. The second told the jury that, although the plaintiff might have believed that the number of men was insufficient to do the work with reasonable safety, yet, unless it appeared that the danger of doing said work with that number of men was so glaring that a man of ordinary prudence would not have engaged therein, then the plaintiff would not be prevented from a recovery on the ground of contributory negligence. The defense interposed by the answer was that of • — 238 — contributory negligence. While there may be a clear and logical distinction between a defense resting upon the assumption of risks and that predicated upon contributory negligence (Alcorn v. Railroad, 108 Mo. 81), the former of these defenses was not, and the latter was, pleaded in the defendant’s answer, so that the plaintiff’s instructions cover the whole case stated in the pleadings. It is an elementary rule of practice that the hypotheses o f the instructions in a case must be confined within the limits of the issues made by the pleadings. It follows as a corollary to this proposition that, had the plaintiff’s instruction contained the omitted reference of which defendant complains that such reference would have been a fatal vice therein. It is quite true that the court on its own motion gave an instruction telling the jury that, if the plaintiff continued in said work with the insufficient number of men engaged therein, then he assumed all the risks connected therewith, but the defendant can not be heard to complain of this, for the reason that it invited the error, if such it was, by asking an instruction similar in enunciation. Even if inconsistent with those of plaintiff the latter of which we think to be unexceptionable, this constitutes no grounds for the disturbance of the judgment. Lohse v. Railroad, 44 Mo. App. 645. And especially must this be so when the jury have found against the fact predicated in the said instruction erroneously given for defendant. Vail v. Railroad, 28 Mo. App. 372. The plaintiff’s instructions, the substance of which we have already given, stated appropriate rules of law applicable to the evidence under the pleadings, as will be seen by reference to the adjudicated cases. Thorpe v. Railroad, 89 Mo. supra; Devlin v. Railroad, 87 Mo. 545; Huhn v. Railroad, 92 Mo. 440; Omellia v. Railroad, 115 Mo. 205; Stoddard v. Railroad, 65 Mo. 514; Fogus v. Railroad, — 239 — 50 Mo. App. 250; Myers v. Hudson Iron Co., 150 Mass. 125; Railroad v. Gladmon, 135 U. S. 554; Buswell, Law of Personal Injuries, sec. 207. The instruction given for defendant declared that, if plaintiff understood the nature and hazards of the work in which he was engaged, and the probable effect and consequences of doing the work with the number of men employed, and yet continued in the work, he was not entitled to a verdict; that, if he did anything a prudent man would not have done, or omitted anything that a prudent man would have done, and that any act or omission on his part contributed to his injury, he was debarred from recovering; that, if the injury was produced by the negligence of his colaborers, or if any act of his was contributory to it, the finding should be for the defendant; that, if men of ordinary care and caution would not have considered it hazardous to do the work with the number of men with which the plaintiff was doing it, then defendant could not be guilty of negligence in not employing a greater number of men. These instructions fully covered the grounds of defense relied on by defendant in the answer, and, as far as we can discover, are not repugnant to these given for plaintiff. In the light of the authorities just cited we do not think the court erred in amending the defendant’s instructions numbers 3, 4, 5 and 6 by adding thereto a proviso, to the effect “that the jury must further find that the danger of doing said work with the number of men furnished was so glaring that an ordinarily prudent man would not have engaged in it before plaintiff could be debarred from recovering on account of his continuing in the work with knowledge that the force was insufficient.” We do not believe 'that the other errors alleged to have been committed by the trial court against defend — 240 — ant are of moment, or, materially affect the merits of the action and so need not be further noticed. The case seems to have been fairly submitted to the jury upon the pleadings and evidence under proper instructions, and with their verdict and the judgment thereon we find no fault. Judgment affirmed. All concur.