Huhn v. Missouri Pac. Ry. Co.

• Citation: 4 S.W. 937,92 Mo. 440
• Parties: Huhn v. The Missouri Pacific Railway Company, Appellant
• Decision Date: 06 June 1887
• Court: United States State Supreme Court of Missouri

4 S.W. 937

92 Mo. 440

Huhn v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

Adams & Bowles with Thos. J. Portis for appellant.

(1) The court erred in admitting the opinions of plaintiff's witnesses in evidence, as to the comparative safety to employes of blocked, and unblocked, frogs and switches. Hopkins v. Railroad, 74 Ill. 32; Chicago v McGiven, 74 Ill 347. (2) The defendant's instruction, in the nature of a demurrer to the evidence should have been given. There was no conflict in the evidence, and nothing for the jury to find. Cummings v Collins, 61 Mo. 520; Hulett v. Railroad, 67 Mo. 239; Porter v. Railroad, 71 Mo. 66; Ranes v. Railroad, 71 Mo. 164; Devett v. Railroad, 50 Mo. 302; Smith v. Railroad, 69 Mo. 33; Railroad v. Londergan, 7 N.E. 55; Wonder v. Railroad, 32 Md. 411; Baldwin v. Railroad, 50 Iowa 680; Osborne v. Railroad, 68 Me. 51; Railroad v. Flannigan, 77 Ill. 365; Railroad v. Gilderslieve, 33 Mich. 133; Railroad v. Asbury, 84 Ill. 433; Wills v. Railroad, 56 Iowa 520; Perrego v. Railroad, 52 Iowa 276; Clarke v. Fisher, 1 Paige, 174; Kray v. Railroad, 32 Iowa 357; Randell v. Railroad, 109 U.S. 478; Baylor v. Railroad, 40 N. J. 23; Railroad v. Black, 88 Ill. 112; Sullivan v. Manufacturing Co., 113 Mass. 396; McGlynn v. Railroad, 31 Cal. 376; Way v. Railroad, 40 Iowa 159; Williams v. Railroad, 43 Iowa 396.

Gates & Wallace and John A. Sea for respondent.

(1) The admission of evidence not objected to at the time is not error. Smith v. Dunklin County, 83 Mo. 195; Allen v. Mansfield, 82 Mo. 688; State v. Lett, 85 Mo. 52; Harrison v. Bartlett, 51 Mo. 170; Miller v. Duff, 34 Mo. 167; Waldo v. Russell, 5 Mo. 387. (2) The opinions of experts as to the comparative safety of a mechanical appliance are competent. Perkins v. Stickney, 132 Mass. 217; Hill v. Ins. Co., 129 Mass. 345; Lawrence v. Boston, 119 Mass. 126; Sorg v. The Congregation, 63 Pa. St. 166; Tucker v. Railroad, 118 Mass. 547; Towboat Co. v. Starrs, 69 Pa. St. 41. This was a proper subject for opinion evidence. Baldwin v. Railroad, 50 Iowa 680; Cooper v. Railroad, 44 Iowa 134; Alexander v. Sterling, 71 Ill. 366; Seaver v. Railroad, 14 Gray, 466; Porter v. Manufacturing Co., 17 Conn. 249; Welsh v. Ins. Co., 32 N.Y. 427; Greenwell v. Crow, 73 Mo. 638; Robinson v. Railroad, 21 Mich. 141; Whart. on Evid., sec. 444. (3) Whether it is negligence for the master to furnish, or to fail to furnish, appliances of a particular kind, for the use of the servant, is a question for the jury. Abel v. Canal Co., 5 Cent. Rep. No. 6, 615; Railroad v. McClellan, 84 Ill. 109; Freemouth v. Railroad, 10 Com. Bench [N. S.] 89; Railroad v. Stout, 17 Wall. 657; Marquette v. Railroad, 33 Iowa 566; Wood's Master and Servant [2 Ed.] secs. 357-8-9, pp. 733, 741; also cases under fourth point. (4) Whether a servant waives the negligence of the master, by continuing to use dangerous appliances furnished by the master, after the servant has knowledge of the defects, is, in cases like the one at bar, a question for the jury. This is a question of contributory negligence. Snow v. Railroad, 8 Allen, 441; Plank v. Railroad, 60 N.Y. 607; Dorsey v. Construction Co., 42 Wis. 583; Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Drain v. Railroad, 86 Mo. 574; Petty v. Railroad, 88 Mo. 306; Fernandez v. Railroad, 52 Cal. 45; Patterson v. Railroad, 76 Pa. St. 390; Hawley v. Railroad, 82 N.Y. 370; Lasure v. Manufacturing Co., 18 S.C. 276; Perigo v. Railroad, 55 Iowa 326; Clayards v. Dithic, 12 Q. B. 439; Porter v. Railroad, 60 Mo. 160; Railroad v. Russell, 91 Ill. 298; Wood's Master and Servant [2 Ed.] secs. 357-8-9, pp. 733, 741.

OPINION

Black, J.

The plaintiff's husband, Charles Huhn, was, and for three or four months had been, defendant's yardmaster, at Independence, Missouri. It appears a freight train was about due at that place, and it became the duty of Huhn, an engineer, fireman, and switchman to set out a car for that train. Huhn directed the switchman to go forward and flag the train. The engine then, with a string of seven cars, pulled out on the main track, and stopped for Huhn to throw the switch, which he did, and then signaled the fireman to back the train; as the car which he intended to take out passed him, he stepped in between it and the one next to it toward the engine, intending to pull the pin. His foot caught between the guard-rail and track-rail, and he received the injuries from which he died. No one saw him at the moment of the accident, but his shoe was found between the rails, with the heel towards the east, the direction in which the cars were moving, showing that he was stepping backward when his foot caught. It was necessary to leave the link in the car to be cut out, and this faced him in a direction opposite to that in which the train was moving when in the act of pulling the pin.

The negligence alleged is a failure to block the guard-rail. The evidence upon this question offered by plaintiff shows that some roads, at their yards, place a wooden block between the guard and track-rail, so as to fill the space up to the ball of the rails, leaving room for the flange of the car wheels. At least three roads block the rails, and there is evidence that this defendant does the same at its yards at Kansas City, though none of the rails were blocked at its yards at Independence. One of the witnesses, who had been in the railroad business for seven years, says it is customary for the roads in this state to block these rails, but from the evidence of other witnesses it appears that many do not. Some of the witnesses say, in emphatic terms, that it is dangerous to work in yards where the guard-rails are not blocked, and all who profess to know anything about it agree that blocking adds to the safety of those employes engaged in switching. One witness on the cross-examination stated that spikes, nuts, and stones were liable to get in the open space, and then there would be more danger of the cars being thrown off than there would be if not blocked; and that, upon the whole, it was a disputed question among railroad men, which was best, blocking or no blocking. Another witness said he had never found one man but said blocking was proper, and safer for the employes.

The defendant offered no witnesses, and the court, of its own motion, gave the following instruction:

"Before the plaintiff can recover in this action, it must appear that the accident, resulting in the death of Charles Huhn, was occasioned by the want of ordinary care on the part of the defendant railroad company in protecting its employes, in that it failed to block the track and guard-rail at the point complained of, and that, by reason thereof, the said Huhn was killed, in the manner charged in the petition; and further, it must appear that the injury was not occasioned by the carelessness and negligence of said Huhn, which directly contributed to said injury. The ordinary care demanded of the railway company is that degree of care which ordinarily prudent men, in operating railroads, would, and do generally exercise, under similar circumstances, towards the protection of their employes; and as to whether or not Charles Huhn was guilty of contributory negligence, resulting in his death, it is your duty to consider what knowledge he had of the absence of a block to the said guard-rail, and, if he had knowledge thereof, whether, at the time, he was acting as a prudent man would, under similar circumstances."

Other instructions were given and refused, but they need not be set out in full.

1. The first question presented by the instruction given and refused is, whether plaintiff must fail in her suit, because her husband had full knowledge of the condition of the guard-rails in the yards, and with that knowledge continued in the service of the defendant, and was injured. Counsel for respondent intimate that there is no proof that deceased knew that these guardrails were not blocked, but such an intimation cannot receive a moment's consideration, for he had been in the employ of the defendant, at these yards, for three or four months, was a sober, observant, and intelligent man, and that he knew of the exact condition of the guard-rails cannot be doubted.

It is often said that the servant waives his right to recover for injuries received from defective machinery and appliances where, with knowledge of the defect, he continues to use such defective machinery or appliances; but the rule, as thus broadly stated, is not correct in its application to a large class of cases. Thus, in the case of Snow v. Railroad, 8 Allen 441, three lengths of plank had been laid down between the rails across a highway; one of these planks had become defective, and there was a hole in it large enough to admit a man's foot. The hole had existed for two months, and the brakeman knew of it, and had made complaint to the track-repairer, but there does not seem to have been any promise to repair. His foot was caught in the hole while he was engaged in uncoupling cars, and he could not get it out before the wheels of the tender ran over his leg. Upon the point in question here, the court made these observations: "Nor do we think that it was any the less a question of fact to be decided by the jury, because it appeared that the plaintiff had previous knowledge of the defect in the road, which caused the accident. * * * It may be suggested that plaintiff ought not to recover, because he continued in the performance of his duties after he was aware of the existence of the defect in the road. There may be cases where a servant would be wanting in due care, by incurring the risk of injury in the use of...