McGowan v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 31 January 1876
• Parties: JOHN MCGOWAN, Plaintiff in Error, v. THE ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

61 Mo. 528

JOHN MCGOWAN, Plaintiff in Error,

v.THE ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

January Term, 1876.

Error to St. Louis Circuit Court.

Cline, Jamison & Day, for Plaintiff in Error.

The conductor was the agent chosen by defendant to manage and control the work, and plaintiff was acting in a subordinate capacity. He, therefore, had a right to rely on his representation. If he did, he is entitled to recover; and, whether he did or not, was a question for the jury.

Thoroughman & Warren, for Defendant in Error.

Plaintiff knew of the condition of the rope, and took the risk. (Devitt vs. Pac. R. R., 50 Mo., 305.)

Nothing shows negligence on the part of the company in the employment of servants.

See generally, Gibson vs. Pacific R. R., 46 Mo., 169.

HOUGH, Judge, delivered the opinion of the court.

This was an action to recover damages for personal injuries received by the plaintiff while engaged as a laborer in loading bridge timbers on defendant's cars, on the line of its oad. The petition alleged that plaintiff was injured by the carelessness and wrongful acts of the defendant, its agents and employees, and by reason of the defects and rotten condition of a certain rope furnished by the defendant, to draw the timbers from the ground upon the cars, which gave way while in use, whereby the timber being raised by it, fell upon plaintiff's left foot and ankle, crushing it; and that defendant knew that said rope was defective and insufficient, and plaintiff was ignorant thereof.

The defendant admitted the injury, denied the other allegations of the petition, and averred that the plaintiff was fully cognizant of the character and condition of said rope, prior to and at the time of said injury, which averment was denied by the plaintiff.

It appeared at the trial that the train had an engineer, conductor, and twelve laborers. They had been employed for several days in loading timbers on the cars at different points on the line of the road, and were so engaged at the time plaintiff was injured.

The timbers, in being loaded upon the cars, were forced from the ground by the side of the track, over skids extending from the top of the cars to the ground, chiefly by means of a large rope fastened about the timber at its middle and passing through a snatch block, anchored from the opposite side of the cars, and running thence forward to the engine, to which it was attached, and which furnished the power to raise the timber. The plaintiff and other laborers assisted with handspikes at each end of the log, to force it up the skids, and also to keep it in a horizontal position. Half of the men worked at one end of the timber, and half at the other. The timber which injured the plaintiff was a hewed bridge timber, longer than a single car, and was being loaded upon two flat cars. One end had reached and was fastened upon the top of one car, and while the plaintiff was assisting with his handspike in the elevation of the other end, an extra amount of steam was put on in order to spring it up on the other car, and the rope, not being able to bear the strain, then put on by the engine, parted, and the timber fell back upon the plaintiff, causing the injury complained of. The rope used on this occasion was described by the plaintiff, the only witness who testified at the trial, as a “pretty large rope” and a ““middling old rope” which was used only for hauling timber. He further stated that it was rotten at one end, and afterwards said that end had been cut off. It seems that the laborers had been apprehensive of danger from the insufficiency of the rope for two days prior to the accident, and had expressed their fears to the conductor, who said it was all right. Just before the injury, and while the timber was being raised, the men again spoke of the insufficiency of the rope, and the conductor answered that the rope was all right, to go ahead. The plaintiff said, he believed the conductor, took his position at the end of the timber, and was injured in consequence. The foregoing is the material portion of the plaintiff's testimony.

The defendant asked an instruction in the nature of a demurrer to the evidence which was given, and the plaintiff took a non-suit with leave to move to set the same aside, and the court afterwards having refused to set the same aside, and entered judgment for the defendant, which was affirmed at General Term, plaintiff has brought the case here by writ of error.

It is conceded by plaintiff's counsel, that if the plaintiff knew that the rope was defective and dangerous, and with this knowledge, voluntarily took his position at the end of the timber while it was being raised from the ground to the cars by means of the rope, he cannot recover.

But it is contended by counsel that...