Williams v. The St. Louis & San Francisco Railway Company

• Decision Date: 23 December 1893
• Citation: 24 S.W. 782,119 Mo. 316
• Parties: Williams, Appellant, v. The St. Louis & San Francisco Railway Company
• Court: Missouri Supreme Court

24 S.W. 782

119 Mo. 316

Williams, Appellant, v. The St. Louis & San Francisco Railway Company

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from Greene Circuit Court. -- Hon. C. B. McAfee Special Judge.

Affirmed.

Mellette & Frink and O'Day & Travers for appellant.

(1) The evidence presents a case of manifest negligence on the part of the defendant. It was the duty of the defendant to keep its track in such condition of repair as to make it safe for its employees while engaged thereon in the performance of their duties, and if it failed so to do, it is liable. Snow v. Railroad, 8 Allen, 441; Cayzer v Taylor, 10 Gray, 274; Lewis v. Railroad, 59 Mo 495; Huhn v. Railroad, 92 Mo. 440; Gibson v Railroad, 46 Mo. 163; Conroy v. Iron Works, 62 Mo. 35. (2) It was the duty of the section foreman to keep the track clear of obstructions. His negligence was the negligence of the company. Harper v. Railroad, 47 Mo. 567; Brothers v. Cartter, 52 Mo. 372; Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 71 Mo. 66. (3) It was not the duty of plaintiff to find out whether there were obstructions on the track. This was the duty of the company. Porter v. Railroad, 60 Mo. 160; Dale v. Railroad, 63 Mo. 455; Railroad v. Ingram, 77 Ill. 309; Railroad v. Markey, 19 S.W. 392; Hannah v. Railroad, 154 Mass. 529. (4) And if defendant could have known by careful and thorough examination of the dangerous condition of the track and of the existence of the instrument on which plaintiff slipped and fell, it was guilty of negligence, and is liable to plaintiff for the injury he sustained. Ingalls v. Mark Bills, 9 Met. 1; Simmons v. Steam Co,, 97 Mass. 361; Ladd v. Railroad, 119 Mass. 412; Paterson v. Wallace, 1 Macq. 748. (5) The thing on which plaintiff slipped and fell was concealed in the grass and he was not bound to know of its existence. If his means of finding out it was there were equal to those of the company, this would not relieve the defendant from responsibility. Porter v. Railroad, 71 Mo. 66; Harr v. Railroad, 23 N.Y.S. R. 187. (6) Even though the plaintiff knew of the existence of the grass and the water on the track, his attempt to couple the cars when and where he did, did not constitute contributory negligence on his part. Railroad v. Russell, 91 Ill. 298; Porter v. Railroad, 71 Mo. 66; Snow v. Railroad, 8 Allen, 441; Baker v. Railroad, 95 Penn. St. 211; Plank v. Railroad, 60 N.Y. 607. (7) The court should have sent the case to the jury. It was for them to determine the question of contributory negligence. Mauerman v. Seimerts, 71 Mo. 101; Stoddard v. Railroad, 65 Mo. 514; Huhn v. Railroad, 92 Mo. 440; Brown v. Railroad, 99 Mo. 310; Krim v. R'y & Transit Co., 90 Mo. 314; Drain v. Railroad, 86 Mo. 574. (8) If reasonable minds may differ as to the conclusions to be drawn from a given state of facts, it is for the jury to say whether or not there was contributory negligence. Nagel v. Railroad, 75 Mo. 653; Norton v. Ittner, 56 Mo. 351; Barry v. Railroad, 98 Mo. 62; Petty v. Railroad, 88 Mo. 306; Boland v. City of Kansas, 32 Mo.App. 8; Ridings v. Railroad, 33 Mo.App. 527; Kinney v. City of Springfield, 35 Mo.App. 97. Contributory negligence will only be declared as a matter of law when no other conclusion can be fairly and reasonably drawn from the facts in evidence. Wilkens v. Railroad, 101 Mo. 93. (9) If there is evidence, however slight, to sustain plaintiff's claim the case must go to the jury. Charles v. Patch, 87 Mo. 450; Twohey v. Fruin, 96 Mo. 104; Commonwealth v. Railroad, 10 Allen, 189; 1 and 2, Pattison's Digest, secs. 77, 78.

L. F. Parker and E. D. Kenna for respondent.

(1) There is no negligence shown in this case. Finnell v. Railroad, 129 N.Y. 669; Railroad v. Hankey, 93 Ill. 580; Railroad v. Mealer, 50 F. 725; Railroad v. Schertle, 97 Pa. St. 450. (2) The question of negligence is always a relative one, depending on the surrounding circumstances, and the same care in keeping a railroad track clear of obstructions is not required in respect of a side-track used solely for the purpose of repairing cars, as is required in respect of its main track, or those tracks used in making up trains and for general switching purposes. Jackson v. Railroad, 104 Mo. 440; Railroad v. Hankey, 93 Ill. 580; Finnell v. Railroad, 129 N.Y. 669; Malone v. Mer. Trans. Co., 3 Biss. 315; Yeaton v. Railroad, 135 Mass. 418; Railroad v. Austin, 40 Mich. 247; Batterson v. Railroad, 53 Mich. 125; Lee v. Railroad, 86 Ga. 231; O'Donnell v. Railroad, 89 Mich. 174; Arnold v. Canal Co., 125 N.Y. 15.

Macfarlane J. Barclay, J., is absent.

OPINION

Macfarlane, J.

This is an action for damages on account of personal injuries received by plaintiff in coupling cars while in the employ of defendant as switchman. The injury occurred in the yard of defendant used in connection with its repair shops at Springfield. This yard consisted of a number of tracks, some of them used for holding cars brought there for repair.

The negligence charged in the petition, was that defendant, wholly disregarding its duty to plaintiff, did "so carelessly and negligently keep its said tracks, in said yard, by not leveling and grading up the same, but by allowing the same to be uneven and the rail points loose, and not on the same level, and permitting water to remain in pools on said tracks, and along the side thereof, and suffering weeds, grass and pieces of iron, stone, and other debris to accumulate along and upon said track and the sides thereof as to make the same hazardous and dangerous for plaintiff to perform his duties as switchman. The said plaintiff well knowing the dangerous condition thereof suffered them to so remain for a long time." That plaintiff while working in said yard in the discharge of his duty and in the exercise of due care stepped "onto grass, weeds and pieces of iron and other hard substances covered by said grass and weeds, and not seen by plaintiff, which caused him to slip and fall in such a manner as greatly to injure him by catching his right hand between the moving cars" by which it was crushed and amputation became necessary.

The answer was a general denial and a plea of contributory negligence.

At the close of the evidence of plaintiff, the court sustained a demurrer to the evidence and plaintiff thereupon took a nonsuit and, after an unsuccessful motion to set the same aside, appeals to this court.

Plaintiff states the circumstances of the injury as shown by the evidence as follows:

"The evidence shows that the plaintiff at the time of the accident had been in the employ of the defendant some seven or eight years, working in different capacities. At the time of the accident, he was switchman in the defendant's yards at Springfield, Missouri, having been acting in that capacity about ten months. The accident, which resulted in the amputation of plaintiff's right hand at the wrist joint, happened on the twenty-third of September, 1890, while plaintiff was in the act of coupling cars in the performance of his duties as switchman. The place of the accident was in the defendant's yards at Springfield, on one of its switches and at a point where the track was low, water was standing on the track between the rails and ties about three or four inches deep, grass was growing five or six inches long and lying down along the side of the track and on the inside of the track between the rails and between the ends of the ties, and extended practically all over the track, except in the middle, where it was worn down, more or less. This condition involved a length of twelve or fifteen feet along the track. There were other similar places along defendant's tracks close to this. The grass spoken of had been growing there for three or four years. Plaintiff had walked some little distance along the high place in the center of the track to keep out of the water, till he came to where the coupling was to be done. The moving car was going at the rate of about four or five miles an hour. It was a damp, drizzly day, and the track, ties and grass were wet. Plaintiff stepped outside the track, and when he attempted to make the coupling, which he did in the usual and ordinary way, and keeping his eyes upon the car and not on the ground, he stepped with his right foot on the inside of the track about ten inches, leaving his left foot outside the rail some six or eight inches, and reached to get the link to make the coupling. As he stepped on the inside of the track, his right foot rested upon a piece of coil spring about five or six inches long and two and a half inches in diameter, concealed in the grass. The piece of spring rolled under his foot; he slipped, and he fell with his right leg doubled up under him and his left leg across the rail. In falling he threw up his hands, which struck the link on the standing car. The drawhead of the moving car passed over the link and caught his right hand between the lower half of the draw-head of the moving car and the upper half of the standing car, inflicting the injury complained of.

"The evidence also showed that this track, ten, upon which the car was being switched, was used only for storing cars which could be repaired without being taken into the shops. They were repaired standing on the track.

"Plaintiff had worked four or five years in the shops and in the repair yards as a car repairer. His duty as a switchman required him to take cars to and from the repair yards daily. The accident occurred about 3 o'clock in the afternoon of a rainy day in September."

There was no evidence which showed how long the spring had been on the track, further than when found afterwards one end was matted with grass. The coil spring was such as are used beneath a car.

I. We are not able to see, under this...