Missouri Pacific Railway Co. v. Dwyer

The opinion of the court was delivered by Horton, C. J.: This was an action brought by John T. Dwyer against the Missouri Pacific Railway Company for for damages forpersonal injuries alleged to have resulted from the negligence of the defendant. The case was tried by the court and a jury, and judgment -was rendered for the plaintiff for ten thousand dollars and costs of suit. From this judgment the defendant prosecutes a writ of error to this court. The .principal error complained of is, that the court refused — 67 — to sustain the demurrer of the defendant to the evidence of the plaintiff; and also refused to instruct the jury to return a verdict for the defendant. On the trial, the following facts appeared: At the time of the injuries complained of — December 11,1882 — Dwyer was in the employ of the railway company as a brakeman on a freight train from the state line to Atchison. The injuries occurred near Pomeroy, a station on the railway, seventeen miles from the state line in this state. Dwyer came into Kansas City on train No. 24, at 4:10 p. m. ; was to go back at 6:30 P. M.; expecting to reach Atchison at 11:10 P. M. On the night of December 11th, on account of waiting for a special to be started out, Dwyer’s train going to Atchison — No. 37 — was a little late. The special started ahead of the regular freight train, but after it had gone a little distance it was noticed there was a broken drawhead on one of the cars of that train. Upon a signal, Dwyer went forward and helped set the car out on a side-track ; when he got back to his train it was found that one of the cars on his train had a broken drawhead, and a chain was sent for; the engineer pulled his engine up and let the switch engine pull out the car with the defective drawhead. With the train were two Iron Mountain cars loaded with lumber; these two cars were set out with a switch engine; after this was done, the train coupled up again; orders had been given for the train to take cars to Wyandotte, Pomeroy, and Young. The train stopped at Wyandotte, and a car was taken off; the train then started, and continued on until the engine whistled to stop at Pomeroy; this was about 8:40 P. M.; Dwyer set the caboose brake, and then went forward to set the brake on a coal car next to him; the number of that car was 4657, M. K. & T.; the brake-staff was on the north of the center of the end of the car; when Dwyer took hold of the brake-staff to twist it around, it twisted off in his hands, and he fell clear over the south side of the car, two wheels of the car running over his right leg, crushing his ankle and foot. When the brake-staff broke and Dwyer fell off the caí*, he held fast to the staff and carried it with him to the ground; he was taken up, put into the caboose and brought — 68 — back to the state line, reaching there at 12 o’clock at night. The next day, Ur. Griffith, a surgeon in Kansas City, Mo., amputated his leg about ten inches below the knee. In 1881 and 1882 the M. K. & T. railway was under the management of the Missouri Pacific Railway Company, and M. K. & T. cars were run over the road of that company. Car No. 4657 was loaded with coal at Rich Hill, Mo., December 10th or 11th, and at the time Dwyer fell under the wheels by the breaking of the staff or rod, it was being drawn along with the train to be taken off at Leavenworth. It is probable from the evidence, that the car and brake-staff had been in use by the company for six or seven years, and the staff or rod upon the car was similar to those on all the M. K. & T. cars. In April, 1880, at Sedalia, Mo., a new body was put upon the car, and new trucks under it. At that time it was the practice to make a careful examination of all cars being repaired, for all’ rotten timbers or defective irons, and when found, these were replaced by new timbers or irons. On September 13,1882, at Atchison, the sides of this car were raised from sixteen to twenty-four inches. It was not the duty of Dwyer to look over and inspect the brake-staffs on the cars of his train to ascertain if everything was in order, as that duty was imposed upon the car repairers or inspectors in the employ of the company at Atchison, Wyandotte, Sedalia, Rich Hill, and other stations. It does not appear that the railway company or any of its employés had actual notice or knowledge of the defect in the brake-staff before Dwyer fell under the wheels; and it is insisted by the counsel for the railway company that the defect was a latent one only, and could not have been discovered before the injury by the exercise of ordinary care and diligence. The brake-staff was used in setting the brakes of the car to which it was attached, by the brakeman taking hold of the wheel at the top with his hands, and using force to turn it around; the ratchet or cog-wheel of the brake-staff rested on the top of the floor of the freight car, four feet from the ground, and projected out from the brake-rod some three and one-half inches. The — 69 — brake-staff was one and one-half inches in diameter, and the ratchet-wheel six inches. There was a bracket or clasp to hold the staff or rod on the end of the car, five-eighths of an inch thick and two and one-half inches wide; this was fastened on the end of the car with bolts and nuts against the bottom of the floor, the ratchet or cog-wheel being about three inches from the top of the iron bracket or clasp. The brake-staff or rod on the car at the time Dwyer attempted to set the brake was so defective as to be unsafe and dangerous to operate. It has already been decided by this court that as between a railway company and its employés, the railway company is not necessarily negligent in the use of defective machinery, not obviously defective, but it is negligent in such cases only where it has notice of the defects, or where it has failed to exercise reasonable and ordinary diligence in discovering them and in remedying them. (A. T. & S. F. Rld. Co. v. Wagner, 33 Kas. 660.) The jury found, among other things, that a person of ordinary height, standing on the ground by the car and stooping over a little, could have seen underneath the ratchet-wheel by close examination, where the brake-staff separated or broke, without stooping down for that purpose; also, that the crack or break in the staff could have been seen by a careful and ordinary inspector before the same broke off, and that the old crack or break in the brake-staff was such an one as could have been known by the. railway company by the exercise of ordinary care. As a verdict must be founded upon evidence, and as the jury can find no fact not established by or fairly inferable from the testimony given, the question before us resolves itself into this: Was there evidence before the jury to support the special findings of fact? If there was evidence to support these findings, then there was also evidence to support the general verdict in plaintiff’s favor. It appears that the trial court has, by overruling the motion for a new trial, approved of the verdict and findings; therefore these must be accepted as just, if founded upon competent evidence. (K. P. Rly. v. Kunkel, 17 Kas. 145; A. T. & S. F. Rld. Co. v. Holt, — 70 — 29 id. 149.) If there was evidence to support the special findings of fact and general verdict, the court committed no error in refusing to sustain the demurrer of the defendant, or in refusing to instruct the jury to return a verdict for the defendant.. It is not a question of the weight of evidence, or whether the trial court might not have set aside the verdict on a motion for a new trial. The inquiry is, whether there was sufficient evidence before the jury tending to prove the liability of the defendant. A careful examination of the record satisfies us that there was evidence in support of the special findings sufficient to justify them. There was evidence before the jury tending to show that it was necessary for the brake-staffs upon the cars to be kept in good order that they might be operated with safety; that these staffs or rods are a very important part of the machinery of the train; that it was the duty of inspectors of freight cars to examine carefully the trucks, drawheads and brake-staffs; that it was also the duty of the inspectors at "Wyandotte to inspect the cars more thoroughly than at way stations; that the crack or break in the brake-staff was one-half an inch below the ratchet-wheel, and between the wheel and the bracket or clasp; that immediately after the injury to Dwyer it was discovered that the old crack or break was from two-thirds to five-sixths of the staff or rod, the jury placing it at five-sixths; that one-sixth only of the rod was a new break or crack; that this was fresh and bright; that the other — the old break — was all rusty; that an inspector standing between two cars or passing between them could see under the brake-staff if it was daylight; that the part of the brake-staff between the ratchet-wheel and bracket was exposed to view; that a crack or break like the one in the defective brake-staff would grow more and more visible with use, and that it was possible for the defect in the brake-staff to have been detected by the naked eye, even if the staff was straight. W. H. Young arrived upon the ground shortly after the injury happened. Soon after, he took charge of the broken — 71 — brake-staff, and kept it securely boxed up until the trial. The broken brake-staff was before the jury upon the trial, for examination; Young described to the jury the appearance of the brake-staff when he first saw it, and the jury had full opportunity to inspect the staff or rod. 2‘ brake-staff; 'bSity lia" Again, the evidence tends to show that there were not sufficient inspectors at Wyandotte, considering the number of cars to be examined, to make a proper inspection of the cars passing through that station; that the thoroughness of the work depended upon the amount of time they had at their disposal and the labor to be done; that as better inspection was required there than at way stations, it was fairly inferable from the evidence that the inspectors at Wyandotte did not' have sufficient time at their disposal to discover the defects in cars and machinery examined by them. A large amount of evidence was introduced on the part of the defendant tending to show that if brake-staffs attached to cars are straight and apparently all right it is the custom or practice of the inspectors to do nothing more than to make a casual examination, and that with such an inspection it was not probable a crack or break of the kind stated would be observable. We do not think that this practice or custom would relieve the defendant from liability, if the inspectors might have known by the exercise of reasonable and proper care on their part in examining the brake-staff before the injury, that the defect existed. Upon the grounds of public policy, a practice or custom which w'ould permit the inspectors to let a car be operated with a defective brake-staff, when by the exercise of reasonable and proper care on their part the defect could have been discovered and remedied, can hardly be sustained as a valid custom. (A. T. & S. F. Rld. Co. v. Holt, supra; Berg v. Railway Co., 50 Wis. 419.) If a brake-staff is not to be examined for visible defects or cracks until it is bent or broken, inspection would be almost useless; in any event it would be no protection for the safety of the employes using the brake. We do not intend to intimate that a railway company is responsible for hidden — 72 — defects in its cars or machinery which cannot be discovered by careful inspection. We simply declare the right of the plaintiff to recover upon proof tending to show that by the exercise of reasonable care the company could have ascertained the break or crack in the brake-staff prior to the injury complained of. In the case at bar the jury were expressly instructed that “the defendant was not required to exercise extraordinary care and diligence to discover defects in its machinery, but only ordinary care;” they were further expressly instructed that “if they found from the evidence that the defect in the brake-staff, if any existed at the time of the injury, was a latent defect and not discoverable by the use of ordinary care, then the jury must find for the defendant.” The case of A. T. & S. F. Rld. Co. v. Wagner, supra, has been referred to as conclusive against the right of the plaintiff. The distinction between the facts proved in that case and this is marked. In that case, the switchman had full knowledge of the defects in the coupling-pins, but the defect in the spring or appurtenances connected with the drawbar, if any existed, were wholly unknown and could not have been known by the exercise of reasonable and ordinary care. No negligence whatever was shown on the part of the railroad company. The case of Smith v. Railway Co., 42 Wis. 520, is confidently cited as authority for the reversal of the judgment of the trial court. In that case the brakeman injured was required in his employment “to look after and inspect the cars of his train every day, and see if everything was in order, and to report and repair defects if he found any.” The car upon which the brake-shaft or rod broke was a new one, which had been taken into the train but two or three days prior to the accident, and the only negligence that the jury found the railway company guilty of “ was in not applying a proper and sufficient test to the brake-rod.” The court decided there was no testimony tending to show that the tests applied were inadequate or not in accordance with the most approved methods, and therefore it was held that the verdict was not — 73 — founded upon any evidence. In that case, the question whether there was proper inspection after the car had been put upon the railroad for use, was not before the jury for decision. See in this connection, Long v. Railway Co., 65 Mo. 225. In the latter case, while a brakeman was in the act of drawing the brake of a freight car which was in motion, the upright rod broke, the brake-wheel came off, and the brakeman fell to the ground. At the point in the rod where it broke .there was a crack, which, however, was concealed. There was a conflict of evidence as to whether this crack was new, or of long standing, and as to the diligence used by the railroad servants to discover the defect. The brakeman recovered damages, and the supreme court of Missouri affirmed the judgment. It is also urged for a reversal of the judgment, that as the petition alleged a cause of action at common law, if the railway company had in its employ careful and competent inspectors, it is not liable, even though the injury complained of was the result of their negligence; this upon the ground that the inspectors were fellow-servants or coemployés of Dwyer. The law is declared otherwise in this state. (A. T. & S. F. Rld. Co. v. Moore, 29 Kas. 633; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 412.) “ In all cases at common law a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with, with reasonably safe materials to work upon, and Avith suitable and competent felloAV-servants to Avork Avith him; and Avhcn the master has properly discharged these duties, then at common laAV the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment, or the performance of the particular /work, 'including those risks and hazards resulting from the possible negligence and carelessness of his fellow-servants and coemployés. And at common laAV Avhenever the master delegates to any officer, servant, agent, or employé, high or low, the performance of any of the duties above mentioned, Avhich really devolve upon the master himself, then such officer, servant, agent or employé stands in place of the master, and becomes — 74 — a substitute for the master, a vice-priucipal, and the master is liable for'his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence.” ' not cop-emp\’oye In this case the railway company, the master, delegated to inspectors the duty of inspecting the freight cars, which included the trucks, drawheads and brake-staffs thereon, to see whether everything was in order and to repair defects, if any were obvious or visible; therefore the inspectors represented the company, and were not fellow-servants of the plaintiff, who was only a brakeman. (St. L. & S. F. Rly. Co. v. Weaver, supra; Long v. Railroad Co., supra; Condon v. Railway Co., 78 Mo. 567.) Complaint is also made that the jury were not required to answer what sum they allowed for personal injury, and what they allowed for pain and suffering. The refusal to answer these questions, under the theory upon which the case was tried and the verdict rendered, is not material error. 3. Excessive verdict. The only element of which the verdict is composed, was the personal injury — nothing else. For this the jury returned ten thousand dollars as damages. The pain and suffering of Dwyer seem not to have been included therein. Under this aspect of the case, the verdict is excessive. There was no evidence that Dwyer was earning anything at the time of the injury, or that he had paid out or contracted to pay out anything by reason of the injury, or that he lost any time thereby. There was no evidence whatever as to what extent his ability to earn money was impaired. The judgment must therefore be reversed on the sole ground that the damages awarded are excessive. 4' courSy In many of the states appellate courts have adopted the practice, where the damages are excessive but the plaintiff is entitled to something substantial, of indicating the excess, and of giving or directing the trial court to give the plaintiff the option to remit the excess and allow him to take judgment for the residue. Such action on the part of the appellate court is no invasion of the — 75 — province of the jury, or of the rights of the defendant. (Civil Code, §542; Ranch v. Bass, 5 Sneed, 366; Baker v. City of Madison, 62 Wis. 137; McIntyre v. Railroad Co., 47 Barb. 515; Murray v. Railroad Co., 47 id. 196; same case, affirmed in 48 N. Y. 655; Kinsey v. Wallace, 36 Cal. 462; Hahn v. Sweazea, 29 Mo. 199; Belknap v. Railroad Co., 49 N. H. 358; Collins v. City of Council Bluffs, 35 Iowa, 432; Town of Union v. Durkes, 38 N. J. L. 21; Haselmeyer v. McLellan, 24 La. An. 629; Boyd v. Brown, 17 Pick. 453; Watson v. Railroad Co., 38 Leg. Int. 138.) We have considered all of the other questions presented in the briefs and upon the arguments, but do not think them important, and therefore make no comment thereon. Adopting the practice now so universally followed by the appellate courts where the damages are considered excessive, to permit the plaintiff to elect to reduce his damages to a reasonsonable and proper sum rather than be required to accept a new trial, this cause will be remanded with directions that if within thirty days after the mandate of this court shall be filed in the trial court the plaintiff below remits three thousand dollars of the amount awarded by the verdict, judgment shall be rendered in his favor on the verdict, for seven thousand dollars and costs. Failing to do so, there must be a new trial. All the Justices concurring.