18 S.W. 980 (Mo. 1892), Thomas v. Missouri Pac. Ry. Co.

Citation:18 S.W. 980, 109 Mo. 187
Opinion Judge:Sherwood, C. J.
Party Name:Thomas v. The Missouri Pacific Railway Comany, Appellant
Attorney:R. T. Railey for appellant. H. H. Blanton for respondent.
Judge Panel:IN BANC: Sherwood, C. J. Sherwood, C. J., concurring. Barclay, J., dissenting. IN BANC:Sherwood, C. J. Barclay, J., dissenting. Sherwood Sherwood, C. J. Barclay Barclay, J. (dissenting).
Case Date:March 14, 1892
Court:Supreme Court of Missouri
 
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Page 980

18 S.W. 980 (Mo. 1892)

109 Mo. 187

Thomas

v.

The Missouri Pacific Railway Comany, Appellant

Supreme Court of Missouri

March 14, 1892

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Page 981

Appeal from Vernon Circuit Court. -- Hon. W. J. Stone, Special Judge.

Reversed.

R. T. Railey for appellant.

(1) The Wabash freight car and Central Pacific fruit car, mentioned in evidence, were both properly inspected at Nevada, immediately before they were attempted to be coupled by deceased, and ascertained to be sound and in good condition. Under the constitution and statute law of our state, defendant was compelled to receive and transport said fruit car without delay. Const. 1875, art. 12, sec. 13; R. S. 1879, sec. 819; R. S. 1889, sec. 2626. The supreme court of Michigan, in Railroad v. Smithson, 45 Mich. 222, in construing a statute similar to our own, held, in a parallel case, that plaintiff was not entitled to recover. Hathaway v. Railroad, 51 Mich. 256. (2) The injury, therefore, complained of was one of the risks assumed by deceased; and the court, at the close of all the evidence in the case, should have sustained defendant's demurrer to the evidence. Railroad v. Barrager, 14 S.W. 242; Harris v. Railroad, 40 Mo.App. 256; Tuttle v. Railroad, 122 U.S. 189; Porter v. Railroad, 71 Mo. 77; Hulett v. Railroad, 67 Mo. 239; Price v. Railroad, 77 Mo. 509; Gleeson v. Mfg. Co., 94 Mo. 206; Railroad v. Gildersleeve, 33 Mich. 134; Hathaway v. Railroad, 51 Mich. 254; Railroad v. Smithson, 45 Mich. 214; Brewer v. Railroad, 56 Mich. 621; Lovejoy v. Railroad, 125 Mass. 79; Baldwin v. Railroad, 50 Iowa 685. (3) With full knowledge of all the facts, deceased attempted to make said coupling with the link in the drawhead of the freight car aforesaid, and, so far as the record shows in this case, without having made the slightest effort to protect himself from the ordinary risks of his employment. He was, therefore, clearly guilty of contributory negligence, and the court should have sustained defendant's demurrer to the evidence at the close of the whole case. Smotherman v. Railroad, 29 Mo.App. 266; Tuley v. Railroad, 41 Mo.App. 437; Moody v. Railroad, 68 Mo. 471; Henze v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 171; Turner v. Railroad, 74 Mo. 605; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 91; Hixson v. Railroad, 80 Mo. 337; Kelly v. Railroad, 88 Mo. 534; Harris v. Railroad, 89 Mo. 236; Yancy v. Railroad, 93 Mo. 433; Butts v. Railroad, 98 Mo. 278; Hudson v. Railroad, 14 S.W. 15; Bishop on Non-Contractual Law, sec. 484; Harris v. Railroad, 40 Mo.App. 261.

H. H. Blanton for respondent.

(1) The court properly overruled defendant's objection to the introduction of any evidence in the case. Hall v. Railroad, 74 Mo. 300; Barry v. Railroad, 98 Mo. 76; Keegan v. Kavanaugh, 62 Mo. 230; Crane v. Railroad, 87 Mo. 588; Brothers v. Carter, 52 Mo. 372; Clowers v. Railroad, 21 Mo.App. 213; Dedrich v. Railroad, 21 Mo.App. 433; Dutzi v. Geisel, 23 Mo.App. 676. (2) Defendant is not compelled to receive cars with unsafe or dangerous machinery or appliances. It is true that under the law defendant was compelled to receive and transport the Wabash freight car and the Central Pacific fruit car. But defendant was bound, under the law, to transport the Central Pacific fruit car, equipped as it was, with this unsafe and dangerous coupler, in a manner that would be reasonably safe for its servants and employes, and that would have been in connection with passenger cars or cars equipped with like couplers. See authorities cited under proposition 1. (3) Deceased assumed all ordinary risks incident to his employment. But the risk to which he was subjected when attempting to make the coupling complained of was an extraordinary one, and was not assumed by him. Johnson v. Railroad, 96 Mo. 341; Dale v. Railroad, 63 Mo. 445; Stockman v. Railroad, 15 Mo.App. 583; Gibson v. Railroad, 46 Mo. 163; Wood's Law of Master & Servant [2 Ed.] secs. 357, 358, 359, 383, 386; Patterson v. Railroad, 76 Penn. St. 389; Huddlestone v. Machine Shops, 106 Mass. 282; Ford v. Railroad, 110 Mass. 240; Gottlieb v. Railroad, 100 N.Y. 466. (4) Deceased was not injured by the fault or neglect of a fellow-servant. (5) Deceased had a right to assume that defendant would furnish him with reasonably safe machinery and appliances with which to carry on its business, and that cars to be handled and coupled by him on a dark night would be provided with reasonably safe couplers or draw bars. Gibson v. Railroad, 46 Mo. 169; Lewis v. Railroad, 59 Mo. 495; Dale v. Railroad, 63 Mo. 459; Long v. Railroad, 65 Mo. 229; Parsons v. Railroad, 94 Mo. 292. (6) If it appears from the evidence that deceased, although negligent, would have suffered no injury had proper care and caution been observed by defendant, plaintiff is entitled to recover. The evidence in this case shows that Thomas would not have been killed if defendant had not furnished him with a coupler not fit for use in connection with ordinary freight car couplers. Brown v. Railroad, 50 Mo. 465; Bergman v. Railroad, 88 Mo. 678; Dunkman v. Railroad, 95 Mo. 244.

IN BANC: Sherwood, C. J. Sherwood, C. J., concurring. Barclay, J., dissenting. IN BANC:Sherwood, C. J. Barclay, J., dissenting.

OPINION

IN BANC.

Sherwood, C. J.

Action for damages brought by plaintiff as widow for injuries received by her deceased husband while in the service of the defendant company, resulting in his death.

The deceased had been in the employ of the company as night switchman in that particular locality since the preceding August, but prior to that time, and during the winters of 1884-5 and up to April of the latter year, he was employed as a switchman in the same yards.

The accident in question occurred about three o'clock in the morning of February 17, 1886, in the yards of the defendant at Nevada. Defendant, at the date aforesaid, had a number of sidetracks and switches at said place, and what is commonly known as a passtrack, for storing cars that were to be distributed for various points. The switch, which enabled cars to be removed from the main line onto said pass-track, was north of defendant's depot. The yard, from the north part of said switch, gradually sloped towards the south end of the yard; so that when cars were switched in from the main track on the north onto the pass-track they would run down of their own momentum to the south part of said yard, unless stopped with the brakes thereon. The Lexington & Southern road runs from Pleasant Hill, Missouri, while the Missouri, Kansas & Texas runs from Hannibal, Missouri, through Nevada, to Denison, Texas. Nevada was a distributing point for all cars coming over either of said lines, which were to be transferred from one to the other. The station agent of said city of Nevada had superintending control over said yards, and there was also employed by him at said date a night yardmaster and two night switchmen, who were required, among other things, to couple and switch cars and make up trains in said yard after said cars were distributed as aforesaid. Defendant also had at that time a car inspector at Nevada, whose duty it was to inspect all cars, coupling apparatus, etc. Cars coming from other roads were switched off and transferred by defendant at said point, and it was a part of deceased's duty to assist in coupling and uncoupling the same, the petition expressly alleging that it was the duty of the deceased, as night switchman, to manage switches and couple cars and engines together.

Among the cars which came into defendant's yard at Nevada for distribution, at and prior to said date, were what are commonly called fruit cars, containing the Miller patent coupler. These cars usually have platforms about three feet wide, running clear across each end of the car, and if the drawheads pass each other when a car of this kind is coupled to an ordinary freight car there is nothing to prevent the platform from coming in contact with the end of the freight car, in consequence of which a person between said cars, under the circumstances, would necessarily be injured. The Miller coupler is used, so that the cars containing same may be attached to either freight or passenger coaches. It is in use on all passenger coaches, and is so arranged that when two cars, both of which contain the Miller patent coupler, come together, they will couple themselves. It is necessary to use a link and pin to couple an ordinary freight car and the Miller coupler together. On the Miller coupler there is a groove into which the drawhead of the other car containing a similar coupler fits, when the cars come together. These couplers are fitted with a spring which presses them to the left, and when they come in contact they slip past each other until they come to a catch. In this way they act automatically, and couple themselves. The ordinary freight cars have a drawhead with a large pocket on the top, flaring wide, so that when the cars come together they cannot well miss each other. The Miller coupler has a small pocket, and it slopes to the outside and lets the link run around it.

The undisputed evidence shows that the coupling of an ordinary freight car to the Miller coupling is attended with greater danger than an ordinary coupling of freight cars, and that a switchman who once uses the Miller coupler will readily recognize that there is great danger in making such couplings, unless made with care and caution.

All the witnesses who testify upon the question agree that the only safe way to make a coupling like that attempted when deceased was killed is to put the link in the Miller drawhead, fasten it with...

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