Hurst v. Kansas City, P. & G. R. Co.

• Decision Date: 11 June 1901
• Citation: 163 Mo. 309,63 S.W. 695
• Parties: HURST v. KANSAS CITY, P. & G. R. CO.
• Court: Missouri Supreme Court

63 S.W. 695

163 Mo. 309

HURST v. KANSAS CITY, P. & G. R. CO.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

MASTER AND SERVANT — NEGLIGENCE OF MASTER — SAFE PLACE TO WORK — EXPERT EVIDENCE — ASSUMPTION OF RISK — CONTRIBUTORY NEGLIGENCE — HARMLESS ERROR.

1. A brakeman on a freight train is not so connected with the work of improving the yards at a division station as to charge him with having assumed the risk arising from the defective condition of the yards resulting from such improvements, which causes his injury.

2. A servant working in a dangerous place with knowledge of the danger does not assume the risk of injuries therefrom, when he supposes he can safely work in such place, in the exercise of care and caution, which he is exercising when injured.

3. Evidence that gravel was placed in piles in a railroad yard for the purpose of ballasting, which is the usual method of doing such work, does not raise the inference of negligence on the part of the company in an action by a brakeman for injuries resulting therefrom.

4. Two weeks is an unreasonable time for a railroad company to allow piles of gravel used in ballasting to remain between its tracks in its yards at a division station, and negligence in so doing renders it liable to a brakeman injured as a result thereof.

5. Where a brakeman was injured in attempting to board a moving railroad train in a railroad yard, and the evidence shows that the injury was the result of gravel deposited between the tracks by the company, it is error to admit expert testimony as to what would constitute a safe condition of the tracks; the jury being competent to determine such question.

6. The admission of such evidence is harmless, when the company is shown to have been negligent in maintaining the grounds in an unsafe condition.

7. A brakeman in charge of an engine and cars switching in a railroad yard, who, at a time when there is no occasion for haste, signals the train to go ahead when it is stopping for him, and attempts to board it while in slow motion, assumes the risk, and cannot recover for an injury so received, though the company is negligent in not providing a safe yard, which causes him to slip, since he chose the more dangerous method of boarding the train in motion, instead of allowing it to remain stationary until he had boarded it.

Appeal from circuit court, Jasper county.

Action by Theodore L. Hurst against the Kansas City, Pittsburg & Gulf Railroad Company for injuries received while in the employ of defendant. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Lathrop, Morrow, Fox & Moore, for appellant. Kinley & Kinley and Chas. A. Hammond, for respondent.

BURGESS, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant, in whose service he was at the time of the injury, to furnish him a safe place to work. The trial resulted in a verdict and judgment for plaintiff in the sum of $4,750, from which defendant appeals. The facts, briefly stated, are: That at the time of the accident plaintiff was in the service of defendant as rear brakeman on one of defendant's freight trains, running regularly between Mena, Ark., and Stilwell, Ind. T., a divisional point, where there were a number of tracks for switching and other purposes connected with the business of the road. On the morning of August 19, 1897, the train upon which plaintiff was braking arrived at Stilwell from the south. The road up to this time had been operated for nearly two years, and in March, 1897, Stilwell was made a divisional point, and it became necessary to ballast the defendant's tracks in its yards at that place; and, in filling between the main track and the next one west of it, the defendant had, at the place where the injury was received, thrown rock, dirt, and gravel in piles, with level places between them, and had partially leveled the space between the tracks at this point, but, under orders of the road master, had left the dirt scattered in small piles, with the center between the two tracks from 8 to 10 inches higher than at the edges. That at the depot, and a considerable distance north (the tracks running north and south, with the depot south of where the injury was received), the tracks and the ground between them had been made level, and the dirt where the injury was received had been thrown off about two weeks before such injury. The plaintiff had been absent, according to this, when this dirt had been thrown off, and while defendant's employés were working on it. That he had never, before the date of the injury, been on the ground in that part of the switch yards, though he had ridden on freight cars into that part of the yard, but had not gotten down from them on the ground. The testimony showed that the ground between the main track and the one west of it had been raised in the center between the two tracks, and sloped towards the main track, with little mounds of earth, mixed with stone and gravel, by the orders of the road master, and had been so left by his orders. On the day of the injury the freight train of defendant had been pulled into these divisional yards, and, leaving the conductor at the depot, the train, with front and rear brakemen, engineer, and fireman, was pulled up into the north end of the yards, and the freight cars switched onto the first track west of the main track, — the plaintiff riding these freight cars, setting brakes until the cars were set or stopped; and in the meantime the engine and caboose, with the head brakeman on the caboose, managing the movements of the same, were backing slowly, at a speed of from five to eight miles, down the main track. The plaintiff got off of the cars on the switch track where he had been working, and, walking to the main track, stood waiting the coming of the caboose and engine, — the caboose being in front of the engine, and with his attention directed to the coming caboose; and when the end came to him, with it going at the rate of from five to eight miles per hour, the plaintiff caught hold of the rods of the platform of the caboose next to him, set one foot on the step, and, to gain the motion of the caboose, took one or two steps on the ground with...