5 S.W. 810 (Mo. 1887), Tabler v. Hannibal & St. Joseph Railroad Co.

• Citation: 5 S.W. 810, 93 Mo. 79
• Opinion Judge: Black, J.
• Party Name: Tabler v. The Hannibal & St. Joseph Railroad Company, Appellant
• Attorney: G. W. Easley for appellant. Strong & Mosman also for appellant. S. P. Huston for respondent.
• Case Date: November 14, 1887
• Court: Supreme Court of Missouri

Page 810

5 S.W. 810 (Mo. 1887)

93 Mo. 79

Tabler

v.

The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri

November 14, 1887

Appeal from Livingston Circuit Court. -- Hon. James M. Davis, Judge.

Reversed and remanded.

G. W. Easley for appellant.

(1) Plaintiff cannot recover because the derrick was placed in the centre of the train. He knew its position and voluntarily proceeded on the journey after such knowledge. Hayden v. Manufacturing Co., 29 Conn. 548; Hudleston v. Lowell, 102 Mass. 585; Kroyn v. Railroad, 32 Ia. 361; Devitt v. Railroad, 50 Mo. 305; Smith v. Railroad, 69 Mo. 32. (2) The act of placing the derrick car in the center of the train was the act of a fellow-servant and not the act of the master, and for this reason plaintiff cannot recover on that ground. (3) The petition does not charge that the use of the rope for coupling was improper. But if it bears such construction there can be no recovery on that charge. If a chain was the proper appliance for coupling, the defendant had discharged its duty in furnishing the train, because the evidence shows there was one upon the car. The defendant cannot be made liable because fellow-servants of the plaintiff failed to use the appliances furnished. (4) Even if Cartter represented the company, the defendant is not necessarily liable. He testified that he generally directed the use of a switch rope in place of a chain because the former was safer. (5) The question was, not whether the master might have provided better machinery, but whether that employed was suitable and proper for the business. Wood on Master and Servant, 692; Wonder v. Railroad, 32 Md. 411. (6) The second and third instructions given for plaintiff improperly declared the law. (7) The instructions refused for defendant should have been given.

Strong & Mosman also for appellant.

(1) Plaintiff cannot recover on the ground that the derrick car was negligently placed in the center of the train. Its position was not a cause, but a mere condition in the chain of events. Wharton's Neg., secs. 324, 303; Henry v. Railroad, 75 Mo. 295; Marble v. Worcester, 4 Gray, 491; Wood v. Railroad, 51 Wis. 201; Harlan v. Railroad, 65 Mo. 25. (2) There was no evidence on which to base an instruction on the relative safety of a chain and a switch rope. The law has not adopted the chain as the standard coupling for railroad cars, nor does it declare that any other appliance used by the master in lieu of a chain shall afford the same degree of safety that a chain would. (3) There is no implied warranty on the part of the master that the machinery furnished by him is safe for use. At most there is only an implied undertaking that he would exercise ordinary care to make them reasonably safe, and keep them so. Railroad v. Love, 10 Ind. 554; Railroad v. Froech, 68 Ill. 545; Noyes v. Smith, 28 Ver. 59; Wright v. Railroad, 25 N.Y. 562. (4) The whole duty of a master is fulfilled if he exercise ordinary care to see that the machinery and appliances furnished for the servants' use are reasonably safe. Railroad v. Barber, 5 Ohio St. 564; Davis v. Railroad, 20 Mich. 105; Woods' Master and Servant, sec. 411; Smith v. Railroad, 69 Mo. 36; Warner v. Railroad, 39 N.Y. 471; Porter v. Railroad, 71 Mo. 767; Siela v. Railroad, 82 Mo. 435; Covey v. Railroad, 86 Mo. 635; Railroad v. Adams, 3 West Rep. 391; Burke v. Wetherbee, 98 N.Y. 562. (5) The negligence in adjusting the rope, if any, was that of a fellow-servant and...