Lewis v. Wabash Railroad

GOODE, J. (after stating the facts). — 1. Defendant’s counsel objected to the reception of testimony, saying the petition stated no cause of action, and this Avas the only attack on that pleading prior to verdict, except by two irrelevant motions. It is argued the petition counts only on common-law negligence in the retention of an incompetent servant; but if it does, it states a cause of action, and the objection was rightly overruled. 2. As the averment of retention of a careless engineer was not made good Jby proof, a nonsuit was claimed on the theory that the aid of the statutes was not invoked and .there Avas a failure to prove the petition in its entire scope and meaning. Perhaps the pleader thought plaintiff was not engaged in operating work in the meaning of section 2873 of the statutes, Avhich takes [596] away the fellow-servant defense when a railroad employee is injured, while thus engaged, by the negligence of another employee, and thought, too, plaintiff and the engineer Avould be fellow-servants within the definitions contained in sections 2874 and 2875 of the statutes, and so thinking, inserted an averment in the petition which would state a case at common law. In an action on the statutes, such an averment is not indispensable, but if made, does not prevent the petition from stating a case, and if other essential facts are alleged and proved, it is no matter that the charge of hiring or keeping careless hands remains unproved. The question then is whether this petition states a good case without the unproved allegation, one good in view of the statute which excludes the defense that plaintiff’s injury was due to the carelessness of a fellow-servant. We have no doubt it does. It should be remarked just here that the question has not been raised whether plaintiff’s status as an employee was such as to entitle him to maintain an action under the statute, the contention being he has pleaded no action of that kind. Allegations of an usage to give signals before starting an engine, as a warning to employees who might be endangered by its movement, and that the engine which hurt plaintiff was started without giving a signal, in violation of the usage, and while plaintiff was in the act of boarding it, sufficed to state a case. 3. The instructions given and refused have been digested in the statement, and it is apparent from them the case was fairly submitted. If the evidence for plaintiff Avas true, his hurts were due to gross neglect on the part of the engineer, and plaintiff was not at all in fault; for at the time he was attending, to his work in the usual way and had the right to expect the locomotive to stand still until he was warned by bell or whistle it was about to move. The second and third of the refused instructions proceeded, on the notion that the petition counted exclusively on negligence in re [597] taining the. engineer when he was known, or might have been known, to be incompetent. But as we have seen, that was only one of the alleged acts of negligence and on which no recovery was permitted, and plaintiff was entitled to have the jury pass on the other allegation. A party calling a witness may vouch for his credibility and be precluded from impeaching it, but he does not absolutely vouch for the truth of his testimony; and no party is concluded by the statements of any one witness in a case, but is entitled to have the jury weigh it in connection with all the evidence adduced. [Helling v. Order of Honor, 20 Mo. App. 309; King v. Insurance Co., 101 Mo. App. 163.] Hence the first of the three refused instructions was unsound. It related to the testimony of the surgeon of defendant’s hospital who was put on the stand by plaintiff, and we overrule the assignment of error in refusing the request. Also overrule the exception to the remark of plaintiff’s counsel in his address to the jury, wherein he said he would not reflect on the testimony of the physician, but would ask whether he was a willing and talkative witness and favorable to the plaintiff. That was a fair comment on the evidence. An objection to the first instruction granted for plaintiff and, indeed, to his right to have the case submitted to the jury at all, is that he failed to prove any “rule, practice and custom” as alleged, to give warning of the starting of engines in the yards. The idea is that at most a usage or custom was proved, but no written and promulgated rule. All the evidence, including the testimony of the foreman of the yards, was that it had been customary to whistle or ring the bell before starting a locomotive into motion, but it was not proved the company had adopted a formal rule. The purpose of a rule, if prescribed, would have been to regulate the manner of moving engines for the safety of employees, and if a settled custom or usage had been followed with the sanction of the company, this was in effect a rule which [598] plaintiff was entitled to have observed for his protection, and the violation of it was as much a tort as if it had been printed and published. [Rutledge v. Railroad, 123 Mo. 121, 134; 1 Labatt, Master & Servant, sec. 213a.] 4. We have examined some points made regarding the improper admission of evidence, but do not deem them well taken. 5. Finally it is insisted the verdict was excessive. Study of the testimony regarding the sufferings of plaintiff, the length of time he was disabled, and the reduction of. his earning capacity by half, has convinced us this position is untenable. The verdict was reasonable and the judgment will be affirmed. All concur.