Muirhead v. The Hannibal & St. Joseph Ry. Co.

Citation19 Mo.App. 634
PartiesJOHN E. MUIRHEAD, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILWAY COMPANY, Appellant.
Decision Date07 December 1885
CourtCourt of Appeals of Kansas

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...

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