18 S.W. 977 (Mo. 1892), Hamilton v. Rich Hill Coal Min. Co.

Citation:18 S.W. 977, 108 Mo. 364
Opinion Judge:Black, J.
Party Name:Hamilton v. The Rich Hill Coal Mining Company, Appellant
Attorney:Thos. J. Smith and P. H. Holcomb for appellant. J. T. Burney and R. T. Railey for respondent.
Judge Panel:Black, J. Sherwood, P. J., dissents.
Case Date:February 08, 1892
Court:Supreme Court of Missouri
 
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Page 977

18 S.W. 977 (Mo. 1892)

108 Mo. 364

Hamilton

v.

The Rich Hill Coal Mining Company, Appellant

Supreme Court of Missouri, First Division

February 8, 1892

Appeal from Bates Circuit Court. -- Hon. D. A. DeArmond, Judge.

Affirmed.

Thos. J. Smith and P. H. Holcomb for appellant.

(1) The court erred in refusing to permit plaintiff's witness, McAlister, to answer on cross-examination as to whether, upon defendant's theory of the case, the track was a reasonably safe track, since what will be regarded as a reasonably safe track depends upon the character and quality of business done over it, and also the duty required of the servant. Dayharsh v. Railroad, 103 Mo. 576. (2) The court erred in permitting the witnesses, Preston and Hickman, to testify as to blocking that was done by Missouri Pacific Railway Company of its track after this accident. Subsequent repairs made by defendant could not be proven, and certainly similar work done by another after the accident could not. Hipsley v. Railroad, 88 Mo. 348; Ely v. Railroad, 77 Mo. 34. (3) The court erred in permitting the witnesses, Preston and Hickman, to testify as to whether it was safe for employes in yards of railroad companies to do switching where the tracks are not blocked. There is nothing showing that the business at a depot yard was similar to that at this coal shaft; but on the contrary that it was not as testified by witness McAlister. There is no averment in the petition that plaintiff was required to do switching; nor is there any evidence of this fact. Shearman & Redfield on Neg., sec. 6; Parrott v. Wells, 15 Wall. 524; 1 Thompson on Neg. 45, 135. (4) Plaintiff's action is based upon an alleged order given to him by John Graham, pit boss, upon the day of accident. Therefore, the cross-examination by plaintiff of defendant's witness, Reavely, as to any other order was immaterial and improper. Ritter v. Bank, 87 Mo. 574; 1 Greenl. Ev., sec. 52, p. 71, and sec. 449, p. 575. (5) The instruction in the nature of a demurrer to the plaintiff's evidence asked at the close thereof by defendant should have been given. Plaintiff's own testimony shows he was guilty of negligence, but for which the injury could not have happened. First. He admits that he was standing with one foot upon the rails of the track, in front of a loaded car that was approaching him, the rails being then so slick from the rain that it was impossible for him to stop the car with the brakes. Bell v. Railroad, 86 Mo. 612; S. C., 72 Mo. 59. Second. Plaintiff admits that he did not notice that he was at the point of the switch, but that he knew there was a point along there where his foot was liable to be caught. Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80; Taylor v. Railroad, 86 Mo. 463; Buesching v. Gaslight Co., 73 Mo. 229; Melburn v. Railroad, 86 Mo. 109; Hudson v. Railroad, 101 Mo. 30; Kellney v. Railroad, 101 Mo. 74; Yancy v. Railroad, 93 Mo. 433, and cases cited. (6) Instruction, numbered 1, given on behalf of the plaintiff, is erroneous in that it submits to the jury an issue not raised in the pleading, to-wit, as to whether or not the unblocked switch rail "was at a place where plaintiff, by reason of his employment, was required to work." Camp v. Heelan, 43 Mo. 591; Glass v. Gelvin, 80 Mo. 279; Brown v. Railroad, 80 Mo. 457; Storm v. White, 23 Mo.App. 31. (7) It is in conflict in this respect with instruction, numbered 3, given by the court on its own motion. Goetz v. Railroad, 50 Mo. 472; Flori v. St. Louis, 69 Mo. 341; Stevenson v. Hancock, 72 Mo. 614; Price v. Railroad, 77 Mo. 512; Stone v. Hunt, 94 Mo. 475; Frederick v. Allgaier, 88 Mo. 603. (8) This instruction, numbered 1, also assumes as facts that an unsafe and dangerous place between defendant's track rail and switch rail was left unblocked and unprotected, and that there was increased danger to plaintiff on account thereof, which facts are controverted in the pleadings. Ins. Co. v. Seminary, 52 Mo. 480; Peck v. Ritchey, 66 Mo. 121; Conner v. Taylor, 82 Mo. 347; Wilkerson v. Thompson, 82 Mo. 328; Maxwell v. Railroad, 85 Mo. 104; Dowling v. Allen, 88 Mo. 296.

J. T. Burney and R. T. Railey for respondent.

The evidence of the plaintiff tended to show that he was wholly inexperienced, and so notified defendant; that he hired as a car trimmer, and a few days before the accident was required by defendant to couple cars, after they were loaded and trimmed; that plaintiff was not only inexperienced in regard to coupling cars, but was likewise ignorant of the danger arising from the unblocked space between defendant's tracks; that, if such space had been blocked, it would have been safe for plaintiff; that, where such space was left unblocked, it was unsafe and dangerous for plaintiff, and others who were required to work over and about same; that plaintiff on the day of the injury was prudently obeying the order of his master -- although inexperienced and ignorant of the danger to which he was exposed; that he was performing his duty as all other brakemen do; that he could have made the coupling in safety, and have stepped out from between the cars without any injury, had defendant's track been properly blocked; that he acted as a reasonably prudent man would have acted under the circumstances, and was guilty of no negligence upon his part; that he sustained his injury by reason of the negligence of defendant in failing...

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