Hamilton v. Rich Hill Coal Min. Co.

• Decision Date: 08 February 1892
• Parties: Hamilton v. The Rich Hill Coal Mining Company, Appellant
• Court: Missouri Supreme Court

18 S.W. 977

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 to perform a plain duty in regard to blocking its track; that plaintiff was only thirty-one years of age, in good health, and was rendered a cripple for life. These facts were found by the jury in favor of plaintiff. He presents to this court a meritorious cause of action, and asks that the judgment below should be affirmed. Mayes v. Railroad, 8 Am. & Eng. R. R. Cases (Iowa), 530; Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 681; Shortell v. St. Joseph, 104 Mo. 120; Stephens v. Railroad, 96 Mo. 212; Sullivan v. Railroad, 17 S.W. 748.

Black J. Sherwood, P. J., dissents.

OPINION

Black, J.

A coal car ran over the plaintiff's leg, crushing it so that it had to be amputated above the knee, and this is a suit to recover damages for the injuries thus sustained. The trial resulted in a verdict and judgment for plaintiff for $ 8,000.

The defendant owned and operated a spur railroad track, extending from the Missouri Pacific railroad west about one-fourth of a mile to a switch. From this point there were two tracks extending west on a curve and on an up grade some four or five hundred feet to defendant's coal shaft number 6, and thence on to the west. There were no blocks between the rails of these two tracks where they came together at the switch.

The plaintiff was in the employ of the defendant from May 15, 1887, until the twenty-eighth of the following September. Previous to this employment he had been a farmer and had no experience in mining or in handling cars, and this fact was known and understood by defendant's representatives who employed him and under whom he worked. He was employed as a coal trimmer, that is to say, to level up the coal when dropped into the cars, move the cars from the chute when loaded, and move empty cars to the chute. He acted in this capacity as an assistant for a Mr. Cash up to three or four days before the accident. These duties did not require him to couple cars.

Reavely was the superintendent of the mines, and in his absence the men at this shaft were under the direction of Thomas Graham, weigh-master, and John Graham, pit-boss. Three or four days before the accident John Graham directed Cash to go to the pit, leaving the handling of the cars in the hands of the plaintiff. He says John Graham told him to trim the cars and couple all that he could conveniently, and that this order was repeated on the morning of the day of the accident. He says he loaded one car and let it down the grade so that the rear end stood at or over the switch. He then loaded another car and let it down by applying the brake. Before reaching the car standing at the switch he got off, went forward to the other car, and as the approaching car came up he attempted to couple it to the standing car; that the heel of his shoe caught in the unblocked rails and threw him down, and the car ran over his leg inflicting the injuries before mentioned.

Reavely and the two Grahams say they did not direct the plaintiff to couple the cars; that it was the duty of the trainmen to perform this work. The trainmen were also in the employ of the defendant.

There is much evidence to the effect that it is unsafe and dangerous to leave these converging rails unblocked, and there is evidence tending to show that in general they are not blocked at coal mines. There is also evidence to the effect that plaintiff, by reason of his inexperience, did not know that unblocked rails were dangerous. Indeed, there is evidence that he did not know that they were not blocked.

1. On the cross-examination of McAlister, a witness for the plaintiff, the defendant asked a question calling for the opinion of the witness as to whether a track would be reasonably safe, where the switches are not blocked, to an employe not required to couple cars. To this question the court sustained plaintiff's objection. We do not see what such an examination had to do with this case. The plaintiff's case is founded on the averment that it became and was his duty to couple the cars, because he had been directed so to do by the defendant. Whether the track would be safe to one not engaged in coupling cars, though not blocked, was not an issue to be tried. But be this as it may the witness was subsequently interrogated by defendant to the fullest extent on this matter. The defendant has, therefore, no ground for complaint, though the court may have improperly...