O'Mellia v. Kansas City, St. Joseph & Council Bluffs Railroad Company

• Citation: 21 S.W. 503,115 Mo. 205
• Parties: O'Mellia v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant
• Decision Date: 25 March 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 503

115 Mo. 205

O'Mellia v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri, Second Division

March 25, 1893

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

C. A Mosman for appellant.

(1) The risk incurred in O'Mellia's reckless attempt to mount upon the moving engine from between the rails of the track was his own. He could not make the attempt and hold the master responsible for the result. Bunt v. Co., 138 U.S. 485; Solomon v. Railroad, 103 N.Y. 437; Wood on Master & Servant, sec. 372; Shearman & Redfield on Negligence, sec 96; Moran v. Brown, 27 Mo.App. 487; Felch v. Allen, 98 Mass. 572; Porter v Railroad, 71 Mo. 77; Randall v. Railroad, 109 U.S. 483. The law is that when a servant willfully encounters dangers which are known to him, the master is not responsible for an injury occasioned thereby. Knight v. Cooper, 14 S.E. 999; Ochsenbein v. Shapley, 85 N.Y. 214. Here the servant creates the peril by the way he chooses to get upon the engine to ride. (2) The contributory negligence of plaintiff bars a recovery, and the demurrer to the evidence should have been sustained. Henry v Railroad, 76 Mo. 293; Loeffler v. Railroad, 96 Mo. 270; Jackson v. Railroad, 104 Mo. 454; Jones v. Railroad, 95 U.S. 445. (3) The court erred in its rulings on the evidence; the admission of the American Experience Table was error.

Beebe & Watson for respondent.

(1) There was abundant evidence of the defendant's negligence to carry the case to the jury. 1 Shearman & Redfield [5 Ed.] secs. 194-204; Francis v. Railroad, 19 S.W. 935; Gutridge v. Railroad, 105 Mo. 520. (2) Whether deceased was negligent was a question for the jury. Swigert v. Railroad, 75 Mo. 475; Straus v. Railroad, 75 Mo. 185; Railroad v. Ives, 12 U. S. S.Ct. 682; Francis Case, supra; Henry v. Railroad, 19 S.W. 239; Williams v. Railroad, 18 S.W. 1098; Dixon v. Railroad, 104 Mo. 504. The court did not err in respect to the admission of evidence. Tetherow v. Railroad, 98 Mo. 74; Soeder v. Railroad, 100 Mo. 673; Barry v. Railroad, 98 Mo. 62. There was no error in the instructions. Huhn v. Railroad, 92 Mo. 440; Hamilton v. Railroad, 18 S.W. 977.

OPINION

Gantt, P. J. --

This action was instituted in Jackson county to recover damages for the death of William O'Mellia, a switchman in defendant's yards at Kansas City, Missouri.

He was killed by a switch engine about two o'clock in the afternoon of March 21, 1890. The switch engine was manned by the following crew: Morris Sheehan, foreman, George Root, engineer, Thomas Hand, fireman and J. H. Larrimer and William O'Mellia, switchmen. There were no cars attached to the engine at the time of the accident. O'Mellia was what is termed among railroad men, "a follower." It was his duty to throw switches, couple and uncouple cars to and from the switch engine. Engine number 28 which ran over and killed him had footboards at each end of the engine eight feet long, twelve inches wide and about a foot above the ground. It also had sideboards on each side of the engine about a foot from the ground. These footboards were furnished by the company for its switchmen to ride backward and forward in the discharge of their duties. They were constructed level to prevent the men from slipping off, but they frequently got out of repair and became slanting.

On the day of the accident, the crew of the engine number 28 were going to the west bottoms with the engine to get some cars. At a point about one mile from the place where they were to get the cars there was a switch which let them in on another track. On arriving at this switch, the engineer stopped the engine so the switch could be thrown, and directed his fireman to get off the engine and remove a cinder which had gotten into one of the cylinder cocks. When the engine stopped, O'Mellia, as his duty required, got off the engine, threw the switch, which was on the north side of the track, gave the engineer the signal to back up and then passed along westward by the side of the tender or tank as some of the witnesses called it. Up to this time the engine had been running forward. After the switch was thrown the engine was run backward to make the desired coupling. O'Mellia passed to the rear of the engine, crossed the track and stood either with his left foot only inside the rail, and the remainder of his body outside, or he stood wholly outside the rails. He stood at a point about five feet from the engine two or three seconds. the engine began to back slowly toward him, going at the rate of two or three miles an hour. There was some evidence that his attention had been called away and he turned to the engine just as it approached him. There is no conflict as to the very slow movement of the engine. When the footboard came near enough, O'Mellia stepped on it with his left foot, but his foot slipped off, the footboard struck his leg and knocked him down. The rear truck caught his left foot and tore and mashed the flesh from the ankle to the thigh of his left leg, from which injury he died. He was dragged five or six feet before the engine stopped. The evidence as to his stepping on the footboard tended to show that he got the ball of his foot or three or four inches of the front of his foot on the board.

The evidence as to the slanting of the board was conflicting. Russell, a stair-builder in behalf of plaintiff, testified it slanted over an inch. Members of the coroner's jury examined the footboard the next day after the accident when in the same condition it was at the time of the accident, and testified that in their judgment it slanted from an inch to an inch and a half. They agreed it was perceptible to the eye. Henry Ment, an employee of the defendant, testified, he measured it out of curiosity and found the slope only a quarter of an inch. Christian Yetter, a stair builder, called by defendant, as to the proper slope or slant to steps, testified that a slope of one eighth of an inch to a step ten inches wide would, in his opinion, be about right. He thought it might reach a quarter with safety, but should never exceed a quarter. His experience was confined to steps to houses and had never been engaged in making steps like this on an engine, and thought the situation of the step would have a great deal to do with it.

The evidence of Crawford, Sheehan and other train operatives tended to prove that it was customary for switchmen to get on the footboard across the rear end of the tender, when moving slowly as this engine was; that the duty of the follower required him to be on this footboard. There were no rules of the company forbidding a switchman from getting on the footboard where O'Mellia tried to get on. Sheehan testified it had been the custom to board the engines in this manner. Larrimer and Sheehan both testified that they had noticed the slanting of the board. It was in evidence that the yard-master was frequently in the yards, saw the men board cars in the manner O'Mellia did and made no objections. The duty of inspecting the footboard and all other parts of the engine devolved upon the engineer. He was required to inspect it daily. It was his duty to report anything out of repair. He testified that he didn't remember positively whether he examined this engine and footboard on the day of the accident or not. He further testified that his examination consisted simply in glancing over the engine.

The case was tried to a jury and resulted in a verdict for the plaintiff for $ 5,000.

The motion for new trial assigned as errors, that there was no evidence to support the verdict; that it was against the law and the evidence; that the court admitted incompetent evidence for plaintiff and excluded competent evidence for defendant.

"7. The court erred in refusing the demurrer to the evidence."

"9. The court erred in giving plaintiff's instructions 1 to 6 inclusive.

"10. The court erred in refusing defendant's instructions 11, 12a, 13, 14 and 15 and modifying the 17th.

"11. The verdict is excessive."

The court gave the following instructions for plaintiff:

"1. It was the duty of the defendant to furnish the deceased O'Mellia a reasonably safe footboard on the engine tender and keep the same in a reasonably safe condition. If you believe from the evidence that at the time of the said O'Mellia's injury the footboard on the tender of said engine was in a slanting condition and was therefore rendered defective and unsafe for use, and that the defendant, the railway company, either knew or by the exercise of ordinary care might have known that the said footboard was defective and unsafe for use by reason of the same being in a slanting condition in time so that by the exercise of ordinary care said company might have put the same in a reasonably safe condition before the injury of the deceased, and that the said O'Mellia at the time of the injury exercised reasonable care in attempting to get on said footboard, and while in the exercise of such care slipped off the same in consequence of its being in a slanting condition, and thereby defective and unsafe for use, and was thereby killed, then your verdict must be for plaintiff.

"2. In determining whether plaintiff's husband, William O'Mellia, exercised reasonable care in stepping or attempting to step on said footboard, you are instructed that he was only required to exercise such care as a careful and prudent switchman would have exercised under like circumstances.

"3. Although you may believe from the evidence that the deceased knew, or by the exercise of ordinary care might have known that the footboard was in a slanting condition, and continued to use the same, yet, if the said footboard was not so dangerous as to threaten immediate injury...