Coontz v. Missouri Pac. Ry. Co.

Citation26 S.W. 661
PartiesCOONTZ v. MISSOURI PAC. BY. CO.
Decision Date14 May 1894
CourtUnited States State Supreme Court of Missouri

1. In an action against a railroad company by a conductor on an engine for injuries caused by the breaking of the flange of a wheel of the tender, it appeared that it was the duty of the engineer to inspect such wheels. There was evidence of an old, rusty crack in the flange, which could have been discovered by a reasonably careful inspection. Held, that a demurrer to the evidence by defendant was properly overruled.

2. Though defendant was not liable if the wheel had been inspected with due care, and there was strong evidence that it was thus inspected, the supreme court cannot say that a verdict for plaintiff should have been set aside because against the evidence, where there was evidence of the want of such care.

3. Such case does not involve the question of the negligence of a fellow servant, since it was defendant's duty to furnish plaintiff with safe machinery, and to keep it in repair, and the negligence of the engineer was the negligence of defendant.

Appeal from circuit court, St. Charles county; Elliott M. Hughes, Judge.

Action by Edwin Coontz against the Missouri Pacific Railway Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

H. S. Priest and W. S. Shirk, for appellant. A. R. Taylor, for respondent.

BLACK, J.

This is an action for personal damages. The pleadings are the same as they were when the case was here on a former appeal (115 Mo. 669, 22 S. W. 572), with the exception that the petition was amended so as to admit evidence of loss of earnings. The case was submitted to the jury on the last trial on these issues: Whether the wheel of the engine tender was cracked, so as to render it unfit for use, and whether the defendant knew, or by the exercise of ordinary care might have known, of the unsafe condition of the wheel, in time to have repaired it, and thereby avoided the injury. All other issues tendered by the petition were instructed out of the case. The assigned errors to be considered are that the court erred in overruling the defendant's demurrer to the plaintiff's evidence, that the verdict, which was for the plaintiff, is in flagrant disregard of the evidence, and that the negligence shown, if any, was the negligence of a fellow servant.

At the time of the accident the plaintiff was in the employ of the defendant as conductor on an engine used to push trains over a hill between Pacific and Labadie. The crew was composed of himself, an engineer, a fireman, and brakeman. In going west from Pacific to meet a train at Labadie, the flange of a wheel of the tender broke, and the engine and tender were thrown from the track, and down an embankment, breaking the plaintiff's hip. The engine was used both day and night, the plaintiff being the conductor of the day crew. At the time of the accident the engine was running on an up grade at 20 or 35 miles per hour, with the tender in front The plaintiff had nothing to do with the machinery. It was the duty of the engineer to inspect the engine, and see that it was in repair, and fit for use. The engine had not been in the shops for a general overhauling for a year and over, though it had been in the shops for some repairs ten days or two weeks before the accident For the plaintiff, Mal Hollard gave evidence to the following effect: He and Coleman and Jackson went to the place of the accident 15 or 20 minutes after the accident occurred. They walked along the track in the direction in which the engine was moving when derailed. They found on the track a piece of iron or steel, which they picked up and examined, and one of them threw it aside among the weeds. He says it was a piece of the flange of the broken wheel, and was from three to six inches long. It disclosed an old, rusty crack, which extended into the wheel "half or three quarters of an inch, or may be an inch or inch and a half." He says they found this piece of the flange before they came to the place where the ties were broken. The evidence of Jackson corroborates that of Hollard. Another witness testified that he had been a car inspector for five years. According to his evidence, car wheels are inspected by sight, and also by sound, from the use of a hammer. He says a crack like that described by Hollard could be discovered by sight or sound, by sight, if not filled with rust, and, if filled with rust and dust, then by striking the wheel with a hammer. For the defendant, the day and the night engineers in charge of this engine testified that they inspected the engine and tender twice every day. They made the inspection because it was their duty to do so, and for their own safety. They did not...

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