Bradford v. Chicago, Rock Island & Pacific Railway Company
| Citation | 119 S.W. 32,136 Mo.App. 705 |
| Parties | GEORGE A. BRADFORD, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Decision Date | 03 May 1909 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson County Circuit Court.--Hon. E. E. Porterfield Judge.
AFFIRMED.
Judgment affirmed.
Sebree Conrad & Wendorff and W. F. Evans for appellant.
(1) The engine room was sufficiently lighted. Defendant was not guilty of any negligence. The demurrer to the evidence should have been sustained. Jackson v. Elevator Co., 209 Mo. 506; Holmes v. Brandenbaugh, 172 Mo. 53. (2) Plaintiff saw and knew the cogwheels were and fully appreciated the danger of allowing his hand to come in contact with them, and was therefore guilty of negligence in allowing the cotton waste to be come entangled in the cogwheels and draw his hand between them, and, therefore, he cannot recover. George v. Manufacturing Co., 159 Mo 333; Anderson v. Box Co., 103 Mo.App. 382; Holmes v. Brandenbaugh, 172 Mo. 53; Smith v. Box Co., 193 Mo. 715; Doerr v. Brewing Co., 176 Mo. 547; Pohlman v. Car & Foundry Co., 123 Mo.App. 219; Meyer v. Glass Co., 129 Mo.App. 556; Jackson v. Elevator Co., 209 Mo. 506. (3) Plaintiff was thoroughly familiar with all parts of the engine and especially the cogwheels, as well as its surroundings and the conditions under which he was operating it, and therefore assumed the risk. Irmer v. Brewing Co., 69 Mo.App. 26; Poindexter v. Paper Co., 84 Mo.App. 357; Musick v. Packing Co., 58 Mo.App. 331; Fulger v. Bothe, 43 Mo.App. 69, 117 Mo. 475; Rigsly v. Oil Well Supply Co., 115 Mo.App. 297, 307; Mathis v. Stock Yards Co., 185 Mo. 434; Lee v. Railroad, 112 Mo. 372. (4) The court committed error in giving plaintiff's instruction numbered 1 for the reason that said instruction referred the jury to the pleadings to ascertain what the issues were. Pandjiris v. Hartman, 196 Mo. 547; Glasgow v. Railway, 191 Mo. 374; Fisher v. Transit Co., 198 Mo. 562; Webb v. Carter, 121 Mo.App. 155; Allen v. Transit, 183 Mo. 432; Fleischman v. Miller, 38 Mo.App. 181; Commission Co. v. Hunter, 91 Mo.App. 337. (5) The court committed error in giving plaintiff's instruction numbered 1, for while it purported to cover the whole case and directed a finding by the court, it ignored plaintiff's contributory negligence.
Fred A. Boxley and Conkling & Rea for respondent.
(1) Defendant's demurrer was properly overruled. Schermerhorn v. Herold, 81 Mo.App. 461; B. & L. Assn. v. Gro. Co., 82 Mo.App. 245; Cunliff v. Hausman, 97 Mo.App. 467; Dunphy v. Stock Yards Co., 118 Mo.App. 506; Hovarka v. Transit Co., 191 Mo. 441; Wilson v. Alexander (Tenn.), 88 S.W. 935; Fields v. Railroad, 80 Mo.App. 603; Taussig v. Wind, 98 Mo.App. 129; Hunt v. Ancient Order of Pyramids, 105 Mo.App. 41; Winkle v. Peck D. G. Co. (Mo. App.), 112 S.W. 1028; Sambos v. Railroad, ___ Mo.App. ___, 114 S.W. 567. (2) Plaintiff was guilty of no negligence contributing to his injury. Lemser v. Manf. Co., 70 Mo.App. 219; Parsons v. Hammond Packing Co., 96 Mo.App. 372; Czernicke v. Ehrlich, 111 S.W. 17; Sambos v. Railroad, ___ Mo.App. ___, 114 S.W. 567; Moore v. Board of Regents (Mo.), 115 S.W. 6; Gorman v. Transit Co., 96 Mo.App. 602; Taussig v. Wind, 98 Mo.App. 129; Dammann v. St. Louis, 152 Mo. 186. (3) The question of assumption of risk in this case is not properly before this court. Fisher v. Lead Co., 156 Mo. 479; Huff v. Thurman, 78 Mo.App. 635; Jones v. Haberman, 94 Mo.App. 1; Horgan v. Brady, 155 Mo. 659; Benton Land Co. v. Zeitler, 182 Mo. 251; Lowenstein v. Railway, ___ Mo.App. ___, 115 S.W. 2; 26 Cyc. 1185, citing Duerst v. Stamping Co., 163 Mo. 607; Carter v. Baldwin, 107 Mo.App. 217; Roberts v. Telephone Co., 166 Mo. 370. (4) The court committed no error in giving plaintiff's instruction number one. Bowling v. Hax, 55 Mo. 446; Hartpence v. Rogers, 143 Mo. 623; Sherwood v. Railway, 132 Mo. 343; Edleman v. Transfer Co., 3 Mo.App. 503; Corrister v. Railroad, 25 Mo.App. 619; Britton v. St. Louis, 120 Mo. 437; State v. David, 131 Mo. 380; Harris v. Fowler, 71 Mo.App. 488; Vogg v. Railway, 138 Mo. 172; Von De Veld v. Judy, 143 Mo. 348; Moore v. Railway, 176 Mo. 528.
This is a suit for damages sustained by the plaintiff and alleged to have been the result of defendant's negligence. The injury occurred on the 27th day of August, 1905.
The plaintiff was in the employ of the defendant on the section work of its railroad at Vale, a station in Jackson county. After having moved to Vale preparatory to assuming his work, he was informed that he would, in addition to his usual work, be required to run a gasoline engine. He raised some objection to running the engine on the ground of his inexperience, but was informed that a man would be furnished to instruct him in that work. He received such instruction and had operated the engine only a few times before he received the injury complained of. He seeks to recover on the ground that defendant failed to afford him a reasonably safe place in which to perform the service required of him. He was injured while in the act of wiping and oiling said engine.
The engine was located at the bottom of a concrete room sunken to the depth of about fifteen feet. It was lighted at night by a lamp and by day by a skylight window about three feet by five feet in dimensions and located in the south side of the roof and by light from the open door of the room.
Plaintiff testified that on the day in question when he attempted to wipe and oil the cogwheel with some waste material used for the purpose, the material caught in the wheel which jerked his hand into the cogs and ground off his fingers. He testified that it was so dark that he did not see clear enough to realize his closeness to the cogwheel; that this cogwheel was on the north side of the engine. The plaintiff was corroborated as to the conditions of light by some other witnesses. The evidence tended to show that the skylight had caught cinders and dust which had the effect of darkening the room to some extent. The evidence on part of defendant by a large number of witnesses tended to show that the light was sufficient and that, if plaintiff had used reasonable precaution, he could have avoided the injury.
The judgment was for the plaintiff from which defendant appealed. The defendant's contention is that plaintiff's injury was the result of his own negligence.
It is argued, first, that there was sufficient light to have enabled plaintiff, had he exercised ordinary care, to have performed the work without any risk of danger. To support this theory, the evidence is thoroughly gone over to show that, whatever plaintiff may have testified as to that matter, he is not to be believed and that he is so discredited that his testimony is of no probative force whatever. And, for the sake of argument, it may be conceded that his statements were overborne by the weight of other credible evidence, but it does not follow as a necessary conclusion that he had no substantial testimony to support his cause. His credibility may have been seriously impugned, but that is all that can be said of the matter, which was a question solely for the jury.
It is insisted that plaintiff could not have been injured in the manner he claimed that he was; that the material, had it caught in the wheel, did not have sufficient tenacity of texture to have drawn his hand into the cogs; that it could have occurred only by the careless act of plaintiff in placing his hand in danger; and that plaintiff was not able to explain in a satisfactory manner how the injury occurred. All these arguments are proper subjects for the consideration of a jury, but have no appropriate function in an appellate court. They do not go to show that there was no substantial evidence to sustain the verdict, but only to show that plaintiff's evidence should not prevail because it is so completely overbalanced by that of defendant. It is not a question where the facts are inconsistent with natural law, but one whether certain conditions existed, which is always a question of fact. And it is not incredible, taking into consideration the facts--that the room was fifteen feet in depth, lighted only from the skylight mentioned obscured by more or less dirt and cinders, and the limited amount of light admitted through the door entrance--that at all times the light was not sufficient to enable plaintiff to see clearly the portion of the machinery at which he was engaged when injured. Unless plaintiff's evidence is incredible, we are compelled to accept...
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