4 S.W. 937 (Mo. 1887), Huhn v. Missouri Pac. Ry. Co.

Citation:4 S.W. 937, 92 Mo. 440
Opinion Judge:Black, J.
Party Name:Huhn v. The Missouri Pacific Railway Company, Appellant
Attorney:Adams & Bowles with Thos. J. Portis for appellant. Gates & Wallace and John A. Sea for respondent.
Case Date:June 06, 1887
Court:Supreme Court of Missouri
 
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Page 937

4 S.W. 937 (Mo. 1887)

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

[92 Mo. 443] 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

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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 [92 Mo. 444] 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...

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