Gutridge v. The Missouri Pac. Ry. Co.
| Decision Date | 30 June 1891 |
| Parties | Gutridge v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court. -- Hon. D. A. DeArmond, Judge.
Affirmed.
H. S Priest and W. S. Shirk for appellant.
(1) Defendant's demurrer to the plaimtiff's evidence, and its instruction in the nature of a demurrer to the whole case, should have been given. First. The doctrine that an employe cannot recover for an injury occasioned by a latent defect, unless the defendant knew it, or could have discovered it by the exercise of reasonable care, is so firmly and familiarly established in this state that a citation of authorities is scarcely justifiable. But see Corey v. Railroad, 86 Mo. 635; Elliott v Railroad, 67 Mo. 272; Murphy v. Railroad, 71 Mo. 202. Second. The mere fact that the handhold pulled loose does not as between master and servant raise a presumption of negligence on the part of the master, nor does it, without more, justify a verdict against the master. Wood on M. & S. sec. 419; Railroad v. Higgins, 36 Mo. 418; Shultz v. Railroad, 36 Mo. 13; DeGruff v. Railroad, 76 N.Y. 125; Railroad v. Milliken, 8 Kan. 647; Railroad v. Froesch, 68 Ill. 545; Duffy v. Upton, 113 Mass. 544. Third. This case is entirely unlike the case of Condon v. Railroad, 78 Mo. 567. (2) Gutridge was guilty of such carelessness and recklessness in attempting to get down from the car, and which was the direct cause of his death, as precludes a recovery in this case. And this for two reasons: First. He "swung" himself off the roof of the car, thus subjecting the handhold to an unusual and unnecessary strain. Second. In voluntarily attempting to descend from the car, while it was in motion, upon a ladder on the end of the car. There is no evidence that the ladder and handhold were intended for use while the car was in motion. To the contrary, the evidence shows that it was entirely optional with him whether he could descend whilst the car was moving, or wait until it stopped and then get down. Turner v. Railroad, 74 Mo. 602; Cunningham v. Railroad, 12 Am. & Eng. R. R. Cas. 217; Railroad v. Elliott, 98 Ill. 481. (3) It was error to permit the plaintiff to introduce evidence as to the appearance of the handhold, and of the screws, and of the wood in which they had been imbedded, after it was pulled loose from the car. The question was, could the defendant have discovered, by a reasonable inspection of the handhold, before it was pulled off, that it was unsafe, etc., and it was not bound by appearances after it was pulled off, and such evidence tended to prejudice the jury. Elliott v. Railroad, 67 Mo. 272; Rorer on Railroads, pp. 1200 and 1201; Salterle v. Railroad, 3 Hun, 348; Payne v. Railroad, 9 Hun, 526; Dougan v. Trans. Co., 56 N.Y. 1; Dall v. Railroad, 73 N.Y. 468; Stoher v. Railroad, 91 Mo. 504. (4) It was error to permit the witness, Mead, and other witnesses, to testify that it was customary and usual for brakemen to get off of a car in the manner in which Gutridge did. The servant has no right to establish for himself a dangerous rule of conduct which will bind the master. The evidence of Mead was very prejudicial to defendant. Thus Mead was permitted to usurp the function of the jury, and substitute his judgment for theirs, and thus decide the question for them. None of the cases permit this. Freight Co. v. Stanard, 44 Mo. 71; Whitsell v. Railroad, 22 Am. & Eng. R. R. Cases, 336; Jeffrey v. Railroad, 5 Am. & Eng. R. R. Cases, 568. Mead was a conductor and in defendant's employ, and his evidence on this point must have controlled the jury. (5) The accident occurred in full daylight, and Gutridge's opportunity to observe any defect in the handhold was at least equal to that of any car inspector or other servant of defendant. If so, he must be deemed to have assumed the risk. Dale v. Railroad, 53 Mo. 455; Smith v. Railroad, 69 Mo. 32; Cummings v. Collins, 61 Mo. 520.
Fike & Calvert for respondent.
(1) It was defendant's duty to provide reasonably safe appliances to enable Gutridge to discharge his perilous duties with safety. He had a right to presume that it had discharged its duties in that behalf. Parsons v. Railroad, 94 Mo. 286; Bowen v. Railroad, 95 Mo. 268; Johnson v. Railroad, 96 Mo. 340; Loeder v. Railroad, 100 Mo. 673. It was defendant's duty to have inspected the car. Bowen v. Railroad, supra; Gutridge v. Railroad, 94 Mo. 468. (2) It is the duty of a railroad company to keep its rolling stock, machinery and appliances in good and safe condition, to cause as frequent and thorough inspection of these as can be done consistently with the conduct of its business, for the purpose of discovering any defects that may occur from accidental causes, or the effects of wear and tear, or the progress of decay, and to adopt such rules and regulations as are calculated to guard against accidents, and to make the servants in its employ reasonably safe. Miller v. Railroad, 26 P. 70; Porter v. Railroad, 71 Mo. 66; Railroad v. Conroy, 68 Ill. 560; O'Donnell v. Railroad, 59 Pa. St. 239; Railroad v. Jones, 30 Kan. 601. (3) Defendant cannot now complain of the action of the court in overruling its demurrer to the evidence; by offering evidence on its own behalf the demurrer to the evidence was waived. Bowen v. Railroad, 95 Mo. 275; Kelly v. Railroad, 95 Mo. 279; McPherson v. Railroad, 97 Mo. 253. (4) Gutridge was not guilty of contributory negligence. Wilkins v. Railroad, 101 Mo. 93. (5) It was proper to permit plaintiff to prove the condition of the top of the car, and of the wood around where the handhold had been, immediately after the accident. (6) There was no error in admitting the testimony of witness Mead. Defendant did not object to the question until after it was answered. The only reason then assigned was that it was irrelevant and incompetent, and no exception was saved to the action of the court in passing upon it. Keim v. Railroad, 90 Mo. 314; Peck v. Chouteau, 91 Mo. 138; Roe v. City of Kansas, 100 Mo. 190. (7) Gutridge was not required to anticipate or look for any defect in the handhold. He had the right to presume that his master had discharged that duty with the same fidelity that he was then using in his master's service. Parsons v. Railroad, 94 Mo. 286. (8) Defendant's demurrer to the whole evidence cannot be considered, because such refusal was not called to the attention of the court in the motion for a new trial. Atkison v. Dixon, 96 Mo. 582; Klotz v. Perteet, 101 Mo. 213; Griffith v. Hanks, 91 Mo. 109; State v. Rambo, 95 Mo. 462; State v. Grimes, 101 Mo. 188.
This cause was reversed on a former appeal because of error in the admission of evidence. 94 Mo. 468, 7 S.W. 476. The same questions that were determined on the former appeal are presented to us for decision now. In the opinion of Judge Black in this case, when it was here before, the facts are sufficiently stated, so that we do not deem it necessary to repeat them now. Defendant contends, it is true, that the evidence is materially different now from what it was then, but upon examination we do not find this contention well founded.
Although the question was decided on the former appeal, it has been earnestly urged before us that the trial court ought to have sustained defendant's demurrer to the evidence. We have been pressed in this case, as in many others, to constitute this court a jury for the determination of an issue of fact. This the court has no right to do. It is, of course, our duty to ascertain whether there is any substantive evidence to go to a jury, and, if we find there is, we have no authority to usurp the province of the jury and dispose of the issue of fact raised by such evidence. In this case there is no evidence that defendant knew of the defect in the handhold which gave way and resulted in the death of plaintiff's husband. But could it by the exercise of ordinary care have discovered it? This question was submitted to the jurors by appropriate instructions, and they answered it in the affirmative. Defendant now asks us to declare as a matter of law that defendant could not, under the circumstances of this case, have discovered the defect by the exercise of ordinary care. Judge Black, on the former appeal, held that there was sufficient evidence to authorize the submission of the question to the jury, and we see no reason to hold otherwise now. That the evidence tended to prove that the car was an old one, and that the wood where the handhold was attached by means of screws was somewhat decayed, there is no question. But as to the appearance of the wood and the handhold before it came off, there is no evidence, and it is claimed, for that reason, the case ought to have been taken from the jury.
It was the duty of the defendant to furnish reasonably safe appliances for its servants in the performance of their duties and to exercise ordinary care in keeping them in repair. Defendant is not an insurer of the absolute safety of these appliances. It performs its duties to its employes when it exercises ordinary care in selecting and keeping them in repair. The employe must also exercise ordinary care in their use. The difference in the duty of the master and servant is, the master is bound to look for defects, while the servant is bound only to discover what the ordinary use of the appliance would make known to a man of ordinary prudence. The master is held to know the defect, if by the exercise of ordinary care he might know it. The servant has a right to assume that the master has furnished him safe machinery, unless its condition is such that by the exercise of ordinary care he would have discovered its defects. In this case it is argued that the fact that the deceased did not...
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