15 S.W. 554 (Mo. 1891), Dayharsh v. Hannibal & St. J.R. Co.

Citation:15 S.W. 554, 103 Mo. 570
Opinion Judge:Barclay, J.
Party Name:Dayharsh v. The Hannibal & St. Joseph Railroad Company, Appellant
Attorney:Huston & Parrish for appellant. A. W. Myers and Stauber & Crandall for respondent.
Case Date:March 09, 1891
Court:Supreme Court of Missouri
 
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Page 554

15 S.W. 554 (Mo. 1891)

103 Mo. 570

Dayharsh

v.

The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri

March 9, 1891

Appeal from Linn Circuit Court. -- Hon. G. D. Burgess, Judge.

The case proceeds for personal injuries, and the defenses are a general denial and contributory negligence.

Plaintiff was injured while in defendant's employ at its roundhouse, Brookfield, Missouri. He was a laborer under the direction of Mr. Stephens, who was called the night "hostler." The meaning of this term in this case will be readily comprehended, by regarding the locomotive-engines as iron horses and their custody, care, cleaning and management, in and about the roundhouse, as devolving on Mr. Stephens, the "hostler," and the men under his orders for that purpose, from seven P. M. of one day to seven o'clock of the following morning.

Plaintiff's evidence tended to prove that, on the night of the accident, he began work at seven o'clock as usual, coaling and watering the engines till near eleven P. M., after which Mr. Stephens told him to take the scoop and get down in the pit and shovel out the cinders. The pit (or trench) was under the tracks, running into the roundhouse. It received the ashes and cinders from locomotives, and, when filled nearly to the level of the rails, was emptied by shoveling the ashes, etc., out to one side.

In accordance with the order, plaintiff got into the pit, placed his lantern on the rail near him, and began to throw out the ashes with a shovel. It usually took from twenty to thirty minutes to clean out the ash pit. An engine stood close by (defendant's witnesses say some six or seven yards away), on the same track, and Mr. Stephens was upon the engine. When plaintiff had thus been working for a time, stated by him as "three to five minutes" (and by defendant's witness, Mr. Stephens, as "from five to ten minutes"), this engine started backward toward plaintiff. The tender struck him and severely crushed his ankle, as he was endeavoring to get out of its way. He says he heard no bell or other signal given of its approach; that he had only taken out "three or four scoops" and was reaching for another shovelful when he was hit; that he cried out and "tried to dodge it" but failed, and that the tender and part of the engine ran over him. Plaintiff, consequently, lost his leg below the knee.

The testimony as to whether or not a signal was given by ringing the bell (as the engine moved toward plaintiff) was conflicting. Some of defendant's witnesses said it was. The plaintiff said he heard no signal. One of defendant's employes declared that there were other bells ringing on other engines near by, and that he could not say whether or not the engine bell in question was rung. In the progress of plaintiff's examination, he was allowed (against defendant's objection and exception) to state the number of his children and their ages.

The only instruction given by the court, on the measure of damages, was as follows: "If the jury find for the plaintiff, they should, in estimating his damages, take into consideration the age and situation in life of the plaintiff, his bodily suffering, resulting from the injury received, and loss sustained by reason of the loss of his leg, and the extent to which he is disabled from making a support for himself and family by reason of the injury received, not exceeding $ 10,000."

The jury found for plaintiff for $ 5,008.33, and, in due course, defendant filed the usual motions and bill of exceptions, to preserve for review the...

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