APPEAL
from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.
Reversed and remanded.
Statement
of case bye the court.
This is
an action by plaintiff, an employe of defendant, to recover
damages for an injury sustained by him while engaged in
defendant's services as a bridge carpenter and car
repairer. The acts of negligence on the part of defendant
alleged in the petition, are numerous. The plaintiff was
ordered, in the line of his duty, to proceed on a wrecking
train, to the relief of one of defendant's passenger
trains, which had just been wrecked. It is alleged that a
wrecking or derrick car was placed in the middle of the
train; that the said car was old, rotten, badly out of
repair, and unfit to be placed and run in its position in
said train, and that said car had no draw-bar in the forward
end, by which it could be coupled to the car ahead of it
that said car was improperly placed in the center of the
train, and was negligently attached to the car ahead of it by
means of a rope with an iron hook on the end of it; that on
said car there was a derrick, the arm or boom of which was
insecurely fastened, by reason of which the arm or boom was
caused to swing to one side of the car in such a manner as to
be liable to come in contact with the bridges on the railroad
track; that the said car was run with the arm or boom of the
derrick pointing in a forward direction, whereas it should
have been turned around and caused to follow the direction in
which the car was being run.
There
was also an allegation in the petition that a certain bridge
on defendant's railroad, known as Brush Creek bridge, was
rotten, unsafe and unsound. But, on the trial, it was
admitted that this allegation was without any foundation.
It was
also alleged that the said train was run at a dangerous rate
of speed.
The
petition further alleged that, by reason of the enumerated
acts of negligence on the part of the defendant, the said
Brush Creek bridge was torn away and the plaintiff was thrown
into the said creek and greatly injured in divers ways.
The
defendant, during the trial, offered in evidence a certified
copy of the report of the railroad commissioners of this
state, entitled " statement of circumstances attending
the accident at Brush Creek, on the Hannibal & St. Joseph
railroad, March 1, 1881; " which offer was denied by the
court.
The
court gave for the plaintiff, among others, the following
instructions:
" 1. If the jury believe from the evidence that
plaintiff entered into defendant's employment as a common
laborer, or bridge carpenter, to do and perform such work as
was required of him as such employe, then the law presumes
that in accepting such work he only assumed the ordinary
risks or dangers of such employment and did not assume or
contract with reference to any extraordinary risk or
danger."
" 2. If the jury believe from the evidence that
plaintiff was in the employ of defendant as a common laborer
or bridge carpenter, and in the line of his duty as such, and
in and about the defendant's business under the control
and direction of its agents, he received injuries which were
caused by the use by defendant of a derrick car which was old
and rotten or out of repair, and not reasonably safe and
suitable for the business in which it was used, and that the
defendant, or its agent, whose duty it was to repair such
derrick car knew, or by the exercise of ordinary care might
have known, of the condition of such car, then they are bound
to find their verdict for the plaintiff, if they believe from
the evidence that plaintiff was exercising ordinary care and
did not know of said car being old, rotten or out of repair
and that it was not reasonably safe and suitable for the
business in which it was used."
" 3. The jury are further instructed that while the
defendant did not insure its servants against accident, yet
it was its duty towards its employes in prosecuting its
business and in making up its trains to run on its road to
use care, skill and caution to furnish to its employes
reasonably sound and safe cars and to protect the lives of
its servants, and the degree of care, skill and caution must
be proportionate to the dangerous nature of the means
instruments and appliances used."
" 4. If the jury believe from the evidence that A. J.
Cartter was master carpenter for defendant, and as such had
full power and authority to hire and discharge the employes
in his department, and authority over its derrick car and
wrecking train with power to direct in which way said derrick
car should be placed and run in said train, that the
attention of said Cartter was directed to the manner in which
said car was placed in said train, and that he knew that the
arm or boom of said derrick car was run, or placed in said
train pointing in the direction in which said train was being
run, and that the injuries to plaintiff were occasioned by
said arm or boom being so run, pointing in a forward
direction, and that said arm or boom was unsafely and
improperly run in said train running in a forward direction,
when such injuries to plaintiff would not have been received
by him had said Cartter turned such arm or boom so that it
would be run in a following direction, and he failed so to
do, then the jury should find for plaintiff. Provided, they
believe from the evidence that plaintiff did not know that
said arm or boom was pointed and being in said train in the
direction in which said train was being run, and was without
fault on his part."
" 5. If the jury believe from the evidence that the
plaintiff entered defendant's employment as a laborer or
bridge carpenter to do such work as was required of him as
such employe, then the law presumes that in accepting such
work he only assumed the ordinary risks and dangers of such
employment, and did not assume or contract with reference to
any risk or danger occasioned by the use of a switch rope in
place of a draw-bar in coupling its derrick car in the
wrecking train, and if the jury believe from the evidence
that the use of such switch rope rendered such coupling more
unsafe or dangerous than if a draw-bar had been used for such
coupling, and that the plaintiff did not know of the use by
defendant of such switch rope and the increased exposure to
danger by using the same, and that the injuries to plaintiff
were caused or brought about by such unsafe coupling, they
will find for plaintiff. Provided, they further find that
such switch rope was substituted by order of A. J. Cartter,
and that he had charge of the bridge and wrecking department
with power to hire and discharge the men in his department
and to direct with what material such coupling should be
made, and they are further instructed that the proof that the
disaster at Brush Creek was caused by such coupling need not
be direct and positive, but may be established by facts and
circumstances."
" 6. If the jury believe from the evidence that the
derrick car was decayed in its sills and timbers, and was
thereby unsafe for the use to which it was put, and that the
condition of such car was known to the defendant's agent,
whose duty it was to keep it in repair, or might have been
known to such agent by ordinary care on his part, then such
knowledge or opportunity to know, was the knowledge of the
defendant."
The
plaintiff had judgment for $1,000.
STRONG
& MOSMAN, for the appellant.
I.
Plaintiff, when he entered the service of defendant, assumed
the liability to injury from such risks as were ordinarily
incident to the employment in which he was engaged, as
conducted by the defendant, and he further assumed such risks
and perils as were apparent to ordinary observation, which
might be encountered during that service. Cummins v.
Collins, 61 Mo. 520; Porter v. R. R. Co., 71
Mo. 77.
II.
Defendant's negligence ought to be predicated on the act
of the agent who placed the car in the train. Whether the
agent whose duty it was to repair said car knew its condition
or not, does not show negligence in the party who directed
its use, or who placed it in the train on his own motion.
R. R. v. Orr, 84 Ind. 50; Murphy v. R.
R., 71 Mo. 202.
III.
The third instruction for plaintiff is grossly
erroneous in the measure of care it enjoins upon defendant.
It must not be left to the jury to erect their own standard
of care. Smith v. R. R. Co., 69 Mo. 32; Porter
v. R. R., 71 Mo. 66; Gibson v. R. R., 76 Mo.
282.
IV. The
fourth instruction is misleading and unintelligible.
Besides, it is inconsistent with other instructions and
leaves a question of law to be found by the jury. Deppe
v. R. R., 36 Iowa 52.
V. The
fifth instruction only states a portion of the law
applicable to the case as made by the evidence. Porter
case, supra; Cummins case, supra; and it gave to the
jury a carte blanche.
VI. The
sixth and ninth instructions for plaintiff were neither
justified by the evidence, besides being inconsistent with
instructions given for defendant.
VII.
The instructions refused to defendant should all have been
given, as accurately declaring the law applicable to the
case.
VIII.
The court erred in excluding the evidence offered by
defendant, and in admitting evidence objected to by
defendant.
IX. The
damages found by the jury are excessive.
H.
LANDER and H. LITHGOW, for the respondent.
I.
Defendant asked the court to define the issues in this case
to be " the negligence of defendant in making up and
running a wrecking train in a negligent, careless and
unskilled manner in the following particulars: (1) In placing
in said train a derrick car that was old, rotten and unfit to
be placed and run in the center of...