Walker v. Hannibal & St. J. R. Co.

Decision Date08 May 1894
Citation26 S.W. 360
CourtMissouri Supreme Court
PartiesWALKER v. HANNIBAL & ST. J. R. CO.

Appeal from Louisiana court of common pleas; E. M. Hughes, Judge.

Action by Harvey S. Walker against the Hannibal & St. Joseph Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Spencer & Mosman and Fagg & Ball, for appellant. Harrison & Mahan, for respondent.

BURGESS, J.

Action to recover damages on account of personal injuries sustained by plaintiff by reason of the alleged negligence of the servant of defendant. The evidence showed that the plaintiff was the general foreman in charge of the works of the Hannibal Lime Company, at Bear Creek, a small station on the line of defendant's road, six miles west of Hannibal; that the office of the lime company was in that city; that plaintiff had charge of all its business, including the shipment of lime from Bear Creek, and had been such foreman for five or more years previous to the injury; that he was accustomed to send iron drills, used for getting out the rock to make lime, to a blacksmith at Wither's Mills, two miles west of Bear Creek, to be sharpened. The drills were from five to six feet in length, weighing some thirteen pounds each. They were sometimes sent on wagons, sometimes on hand cars, and sometimes in defendant's baggage car. No instructions or directions were given as to the manner by which the drills were to be returned by the blacksmith. The blacksmith at Wither's Mills (Jacob Stover) was postmaster at that place, and was also defendant's ticket agent, and had been for about 15 years before the accident. After the drills were sharpened by Stover, he would take them from the shop to the station house, and lay them down on the railroad platform, in front of the depot. They were usually wired, three together. He would then tag the drills, "Hannibal Lime Company, Bear Creek station," or, if not so tagged, he would mark them with chalk, in the same way. He would then, upon the arrival of defendant's passenger train from the west, put the drills in the baggage car, in charge of defendant's baggage man, who would receive them, place them in the car, and deliver them to the lime company at Bear Creek station. If the train stopped, he would drop them off at the platform, and, if it did not stop, he would throw the drills off anywhere east of the rock chute. This way of delivering the drills by the baggage man had continued for 10 or 15 years before, and up to the day of, the injury. It was a custom of long standing, and the drills were so delivered as frequently as from three to five times per week, and often every day in the week, during this long series of years. Each retiring baggage man would hand down the habit and custom to his successor. The evidence showed: That the plaintiff was in the habit of communicating with the managing officers of his company at Hannibal by letters, which he would throw into the baggage car as the train went by; and on the day of this accident he went down to the track, in order to put a letter which he had written his employers in Hannibal on the train, as he had been accustomed to do; that as the train came in he was standing with one foot on the rail of the side track nearest the main line, with the letter in his hand. When the train got within 200 feet of him, he noticed the ends of the drills projecting out of the open door of the baggage car, saw them raised up, and saw the baggage man look out of the door, and down the track, towards the point where he was standing, and then withdrew himself inside the car. Anticipating that the drills were to be thrown off, plaintiff at once left his position by the side of the track, and ran northward to get out of the way; and he had gotten about 15 feet from the point where he was standing when he was hit with the drills. The baggage man testified that he looked out of the door of the car, and down along the track, and, seeing plaintiff standing by the side of the track, stepped back into the car, and, bracing himself, swung the drills with all his might from the train, as far as he could throw them, for the purpose of avoiding any possibility of striking the plaintiff; that he did not see plaintiff move from the position where he had first seen him, and did not know that he had left that position; that, knowing the position where plaintiff stood, he supposed it would be perfectly safe to throw the drills over beyond the side track. The drills struck the ground, and, revolving, struck plaintiff, knocking him down, injuring his arm, — the point of one of the drills entering his arm. A portion of one of the bones of the forearm had to be removed, thereby shortening that bone, and altering the normal position of the hand with relation to the wrist, and, as compared with its his previous condition, permanently impairing the usefulness of the hand and arm. The evidence further showed that James, the man who threw the drills out of the car, was the agent of the American Express Company, and also a train baggage man in defendant's service; that under the regulation of the defendant, promulgated for the guidance and direction of train baggage men, such baggage men were not permitted to carry any article or commodity in the car which did not belong to the passengers on the train, and come properly within the designation of passenger's baggage, unless it was the property of the railroad company itself, such as tools, material, or supplies sent out by it for its servants at the various stations; that drills shipped by the public over the road properly fell within the designation of freight or express matter, and the train baggage man, James, was not authorized to carry them; that they could only be carried on a passenger train by the express company, as express matter. Plaintiff swore that defendant never, to his knowledge, received a cent for the carriage of the drills; that, so far as he knew, his company was the only party interested in their carriage. And this was corroborated by defendant's train baggage man, Mr. James, who testified that he was never instructed by defendant to carry the drills, and never informed any of its officers that he was carrying them; that plaintiff put the drills on the car at Bear Creek, and instructed him to throw them off at Wither's Mills for "Uncle Jake," and he carried the drills purely as a matter of accommodation, never having received anything for so doing. The present management of defendant company took charge in 1884, some two years before the accident. The superintendent, S. E. Crance, the train master, T. S. Beeler, as well the general agent of defendant at Hannibal, E. F. Bradford, testified that they did not know that the drills were being carried by the baggage man on a passenger train. Plaintiff's evidence, however, showed that Woodward, the superintendent who preceded Crance prior to 1884, as well as Beeler, the train master under the present management, had been seen in the baggage car on two or three occasions when drills were being carried by the baggage man. But the evidence further showed that the presence of drills in the car, if seen by them, would excite no suspicion that they were...

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