Moore v. Kansas City, Ft. Scott and Memphis Railway Company
| Decision Date | 08 December 1898 |
| Citation | 48 S.W. 487,146 Mo. 572 |
| Parties | Moore, Appellant, v. Kansas City, Ft. Scott and Memphis Railway Company |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.
Affirmed.
Wm. O Mead and T. T. Loy for appellant.
(1) The defendant was guilty of negligence when it failed to furnish plaintiff a properly constructed crooked link to enable him to make the coupling with reasonable safety, and even though plaintiff knew the effort to make such coupling with a straight link was dangerous, yet if he believed it could be done with care and caution on his part, and he did exercise care and caution in the effort to make such coupling, then he was not guilty of contributory negligence, defendant is liable for his injuries received in such effort, and the case should have been submitted to the jury. Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Mahaney v Railroad, 108 Mo. 191; O'Mellia v Railroad, 115 Mo. 205; Gutridge v. Railroad, 105 Mo. 520; Nichols v. Crystal Plate Glass Co., 126 Mo. 55; Francis v. Railroad, 127 Mo. 658; McMullin v. Railroad, 60 Mo.App. 231; Beard v. American Car Co., 63 Mo.App. 382; Huhn v. Railroad, 92 Mo. 440; Warner v. Railroad, 62 Mo.App. 184; Railroad v. Box, 1 Am. R. R. and Cor. Rep. 226; Scley v. Railroad, 2 Am. R. R. and Cor. Rep. 151; Ft. Wayne v. Breese, 2 Am. R. R. and Cor. Rep. 237; Railroad v. Sampson, 4 Am. R. R. and Cor. Rep. 406; Railroad v. Higgins, 14 S.W. 653; Van Gent v. Railroad, 45 N.W. 520. It is immaterial whether the high and low drawheads were the result of faulty construction or want of repair; if they existed, it was the duty of defendant to supply the plaintiff with a proper link to couple them together in safety. Gutridge v. Railroad, 94 Mo. 468. (2) There can not be found any other reason why the trial court sustained defendant's demurrer to the evidence than that the plaintiff was guilty of contributory negligence. This question is one for the jury, unless the testimony so clearly establishes it that reasonable minds may not differ. Webber v. Railroad, 100 Mo. 194; Davis v. Railroad, 46 Mo.App. 180; Cook v. Railroad, 19 Mo.App. 226; Drain v. Railroad, 86 Mo. 574; Beaty v. Life Ass'n, 21 C. C. A. 227. (3) The presumption is that plaintiff was careful and cautious and before he can be charged with contributory negligence it must be proved as any other fact. Davis v. Railroad, 46 Mo.App. 180; Schlereth v. Railroad, 96 Mo. 509; Hudson v. Railroad, 101 Mo. 13. (4) The facts in the case of Hulett v. Railroad, 67 Mo. 239, are unlike in this case, in that, the defendant in that case had and kept on hand crooked links for use, and the plaintiff could have had one for the taking for use, but chose to take the risk rather than the trouble to get one, while in the case at bar the defendant furnished none for use at or before the injuries complained of, leaving no alternative for plaintiff but to couple the cars with a straight link or quit the service of defendant.
Wallace Pratt and Goode & Cravens for respondent.
(1) Plaintiff voluntarily undertook to make this coupling which required unusual caution in an unusually reckless manner, and can not, therefore, recover for the injury received. Hulett v. Railroad, 67 Mo. 239; Goins v. Railroad, 37 Mo.App. 221; Brewer v. Railroad, 56 Mich. 620; Railroad v. Gildersleeve, 33 Mich. 133; Kelley v. Railroad, 23 N.W. 890; Law v. Railroad, 21 S.W. 648; Turbaville v. Railroad, 12 So. Rep. 63; Carlson v. Sioux Falls Co., 59 N.W. 217; McDonald v. Railroad, 13 So. Rep. 706. (2) Where a servant uses machinery known to be defective he is bound to use special precaution, and if he fails to do so and is injured he can not charge the master with liability. Bailey on Master's Liability for Injuries to Servants, 169; Railroad v. Roy, 5 Ill.App. 82; Winkler v. St. Louis Basket & Box Co., 137 Mo. 398; Marshall v. Hay Press Co., 69 Mo.App. 256. And when the work could have been easily done by a safer mode, but the servant, because it was more convenient, chose a perilous one, he can not recover. St. Louis Bolt & Iron Co. v. Brenhan, 20 Ill.App. 555; St. Louis Bolt & Iron Co. v. Burke, 12 Ill.App. 369; Anderson v. Railroad, 39 Minn. 523. (3) The testimony of both the plaintiff and his witness Daly, is to the effect that plaintiff attempted to couple the cars in an unusual, careless way. Plaintiff's negligence was, therefore, established by himself, and it was the duty of the court to sustain the demurrer. Where the question of plaintiff's negligence depends on conflicting testimony, it is for the jury to decide; not so, however, when it appears from his own proof, or from the cross-examination of his witnesses that he was guilty of carelessness which contributed to the accident. Buesching v. Gaslight Co., 73 Mo. 219; Powell v. Railroad, 76 Mo. 83; Zimmerman v. Railroad, 86 Mo. 457. (4) If, as plaintiff testifies, it was not the custom of defendant to furnish crooked links with which to couple drawheads of unequal heights, he knew that fact, and, having in spite of it continued for years in defendant's employ, making such couplings every day as he swears without crooked links, he is conclusively presumed to have assumed the risk, as incident to his employment. Devitt v. Railroad, 50 Mo. 302; Winkler v. St. Louis Basket & Box Co., 137 Mo. 399; Jackson v. Railroad, 104 Mo. 448; Alcorn v. Railroad, 108 Mo. 87; Holloran v. Union Iron & Foundry Co., 133 Mo. 470; Lacey v. Hannibal Oil Co., 129 Mo. 32; Burnes v. Railroad, 129 Mo. 41; Junior v. Electric Light & Power Co., 127 Mo. 83; Keegan v. Kavanaugh, 62 Mo. 232; Smithy v. Railroad, 69 Mo. 32; Porter v. Railroad, 71 Mo. 66.
Plaintiff sues for damages on account of personal injury received while in defendant's employ as a switchman.
The facts, upon which he predicates the liability of the railway company, are these: It was plaintiff's duty under his employment to couple together the cars in making up freight trains in its yards at Springfield. He was engaged in so doing on the twelfth of January, 1895, when it became necessary for him to make a coupling between two cars, the drawheads of which were of unequal height. Defendant failed to furnish crooked links for that purpose, and plaintiff was compelled to use a straight link. This was the only kind provided. The failure to supply crooked links for use upon such occasions is the negligence counted upon in the petition. It is claimed that a straight link is unsuitable and not reasonably safe for a switchman to use, when the drawheads are not of the same height. At the time plaintiff was hurt, eleven or twelve cars had been placed in the train and were standing upon the main track. Another car was brought up and placed in such position that it would run down grade to the stationary cars above mentioned, to which it was to be attached. It was then cut loose from the engine, and ran down to the other cars. The drawhead of the moving car was lower than that of the one standing still. The link was in the lower drawhead, and as the cars came together the first time, plaintiff tried to make the coupling by raising the link so that it would connect with the higher drawhead of the other car. He failed in this attempt, and says that, when the moving car struck those standing on the track, it "bounced back," but he could not tell how far. He afterward changed the link to the higher drawhead. The other car was then hit by one set in by the engine on the same track, and began again to move toward those composing the train. Plaintiff, as they came together the second time, made another effort to effect the coupling. He attempted with his right hand to force the link down to the lower drawhead, but failed, and his hand was caught and badly mashed and amputation of several of his fingers became necessary.
The evidence showed that plaintiff was thirty-two years old and was an experienced switchman. He had been railroading for a number of years and had been in defendant's employ probably ten years or more. It further appeared that defendant had never furnished its employees with crooked links to make such couplings.
Plaintiff testified that he could have raised the lower drawhead, and propped it up, and, in that way, have made the coupling without placing his hand in the dangerous position where it was hurt, if he had had time to do so between the movements of the car. He says he did not do this for want of time; that, as the cars were coming together, it would have been more dangerous for him to have gone between them to raise the lower drawhead than to do as he did. The evidence does not disclose any reason why he might not have waited until he could make the coupling in a proper and safe way. The testimony does not show that he was required to make it when the cars came together the second time.
J. M. Daly, a witness for plaintiff, testified on cross-examination as follows:
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