Clowers v. Wabash

Decision Date09 March 1886
CourtMissouri Court of Appeals
PartiesD. L. CLOWERS, BY NEXT FRIEND, Respondent, v. WABASH, ST. LOUIS & PACIFIC RAILROAD COMPANY, Appellant.

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS, Judge.

Affirmed.H. S. PRIEST, and GEORGE S. GROVER, for the appellant: There must be proof of the appointment of a next friend. Rev. Stat., sects. 3, 69, et seq.; Porter v. Railroad, 60 Mo. 162. The court gave improper instructions at the request of the plaintiff. Hoke v. Railroad, 11 Mo. App. 574; Lee v. Detroit B. & I. Works, 62 Mo. 565; Marshall v. Schricker, 63 Mo. 308; Rains v. Railroad, 71 Mo. 168; Weger v. Railroad, 55 Pa. St. 460; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; Feltham v. England, L. R. 2 Q. B. 32; Wilson v. Merry, L. R. 1 H. L. Scotch App. 326; Howells v. Lendore Steele Co., L. R. 10 Q. B. 62, 11 Moak, 153; Lawler v. Railroad, 62 Me. 463; Albro v. Agawam Canal Co., 6 Cush. 75; O'Connor v. Roberts, 120 Mass. 227; Davis v. Railroad, 20 Mich. 105; Peschel v. Railroad, 17 Am. & Eng. R. Cas. 545, and cases cited in note on page 561. The court gave erroneous instructions of its own motion. Porter v. Railroad, 71 Mo. 67; Koenig v. Life Ass'n, 3 Mo. App. 596; Iron Mountain Bk. v. Murdock, 62 Mo. 70; Thomp. Charg. Jury, 100, and cases cited.

LACKLAND & WILSON, for the respondent: It was the defendant's duty to furnish and to keep in repair, safe and sound hand cars. 24 Am. Law Reg. 116; 20 Cent. Law J. 27; Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 60 Mo. 160; Brothers v. Carter, 52 Mo. 376. A section foreman is not a fellow-servant of a laborer under him. Wilson v. William Linen Co., 50 Conn. 433; Siela v. Railroad, 82 Mo. 430; Gormly v. Vulcan Iron Works, 61 Mo. 492; Devany v. Vulcan Iron Works, 4 Mo. App. 236. The question of non-appointment of next friend can not be raised on general denial. Rogers v. Marsh, 73 Mo. 70.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff, while in the defendant's employ as a laborer, was thrown from one of the defendant's hand cars, which passed over his prostrate body, inflicting serious injuries upon him, some of which are shown to be permanent in their nature. In this action, brought by next friend, to recover damages for such injury, he obtained a judgment for two thousand and five hundred dollars.

The negligence claimed as the foundation of the action, is that the hand car was defective and unsafe, in this, that the levers on the same were weak, defective, and unsafe, and were not securely fastened, of which fact the plaintiff at the time had no knowledge, but the defendant had.

The company defends on the grounds that the accident was the result of the plaintiff's own negligence, and the negligence of other employes of the company, in propelling the hand car with extraordinary speed, and bearing upon the levers with unusual force, subjecting them to an unusual strain.

The case rests entirely on the plaintiff's testimony, all evidence adduced by the defendant being confined to the extent of the plaintiff's injuries, and not to their cause.

The plaintiff's evidence tended to show that he was hired as a laborer and track repairer, by one Broomer, a section foreman on the defendant's road, and that on the day in question, Broomer, the plaintiff, and six other employes of the company, mounted this hand car at a station, with the intention of proceeding on the road for a short distance to repair the track. That when approaching their destination they saw smoke ahead of them, and the foreman believing that it evidenced an approaching train, urged the men to work the lever of the car with additional force, using the expression, “shake her up boys.” That the car was, thereupon, propelled at a greater speed, and immediately thereafter the lever on which the plaintiff worked broke, he was thrown on the track, and the car passed over him. The testimony tended further to show that the lever on the hand car, (usually made of ash wood), was inserted in an iron shoulder, and could have been readily taken out and examined. That this lever had become loose in the shoulder, and was cracked at a place covered by the iron of the shoulder, and that the foreman, Broomer, had knowledge, for some days prior to the accident, of the fact that the lever was in a loose and dangerous condition.

The errors complained of by the appellant are, that the court refused to non-suit the plaintiff as requested, and further, that the court refused to instruct the jury, as requested, that the accident was caused by an ordinary danger of the plaintiff's employment, of which he had assumed the risk, and further, that it refused to instruct that Broomer's negligence, if any, was that of a fellow-servant of the plaintiff, and that the company was under no greater duty of inspection of its machinery than the duty of exercising such care in that behalf as is usual with railroad companies.

On the first point the appellant contends, that on the authority of the case of Porter v. Railroad (60 Mo. 162), the judgment must be reversed, because no evidence was offered by the plaintiff of the appointment of a next friend, and there was a general demurrer, by instruction, to the plaintiff's evidence, which that case holds is sufficient to save the point. Such, unquestionably, was the effect of that decision. But in the later case of Rogers v. Marsh (73 Mo. 70), it was held that this objection is one for defect of parties plaintiff, and is waived under the statute, unless saved by special demurrer, or demurrer by answer. This last decision is not only in conformity with the more liberal views marking recent decisions, which disregard purely technical objections in arriving at the true merits of a controversy, but is furthermore the last controlling decision of our supreme court on this question, and as such is binding upon us.

This point, therefore, must be ruled against the appellant. The second objection is also untenable. Formulating a rule of law as resulting from all the cases decided in this state, involving the question under consideration, we say this: Latent defects in machinery, or other appliances, are not part of the ordinary risks of employment, which even an adult or experienced employe assumes as incidents of his employment. That, while the employer is not an insurer of the absolute safety of the machinery or appliances he furnishes, he is bound to provide such instruments with which to carry on his business as are reasonably safe, secure, and sufficient for that purpose. If he fails to provide and maintain such, and in consequence of this breach of duty on his part, the employe suffers injuries, the employer is responsible for the injuries thus caused.

In Gibson v. Railroad (46 Mo. 169), a leading case on this subject, the duty of...

To continue reading

Request your trial
12 cases
  • Trolinger v. Cluff
    • United States
    • United States State Supreme Court of Idaho
    • April 21, 1936
    ...before the bringing of an action is not a jurisdictional defect, but is an irregularity merely. To the same effect, see Clowers v. Wabash etc. Ry. Co., 21 Mo.App. 213; Wolford v. Oakley, 43 How. Pr. (N. Y.) 118. . . Both the mother and the minor are bound by the judgment as it comes here." ......
  • Trask v. Boise King Placers Co.
    • United States
    • United States State Supreme Court of Idaho
    • July 13, 1914
    ...... of an action is not a jurisdictional defect, but is an. irregularity merely. To the same effect, see Clowers v. Wabash etc. Ry. Co., 21 Mo.App. 213; Wolford v. Oakley, 43 How. Pr. 118. . . In. Drew v. Farnsworth, 186 Mass. 365, 71 N.E. 783, ......
  • Baxter v. St. Louis Transit Company
    • United States
    • United States State Supreme Court of Missouri
    • June 20, 1906
    ...... of a curator. Taylor v. Pullen, 152 Mo. 439;. Rogers v. Marsh, 73 Mo. 70; Clowers v. Railroad, 21 Mo.App. 216; Randolph v. Railroad, . 18 Mo.App. 614; Lyddon v. Dose, 81 Mo.App. 69;. Jones v. Steel, 36 Mo. 325; Sherman v. ......
  • Clowers v. Wabash, St. L. & P. Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • March 9, 1886
    ...21 Mo.App. 213 D. L. CLOWERS, BY NEXT FRIEND, Respondent, v. WABASH, ST. LOUIS & PACIFIC RAILROAD COMPANY, Appellant. Court of Appeals of Missouri, St. Louis.March 9, APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS, Judge. Affirmed. H. S. PRIEST, and GEORGE S. GROVER, for th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT