66 S.W. 1072 (Mo. 1902), Minnier v. Sedalia, Warsaw and Southwestern Railway Company

Citation:66 S.W. 1072, 167 Mo. 99
Opinion Judge:MARSHALL, J.
Party Name:MINNIER v. SEDALIA, WARSAW AND SOUTHWESTERN RAILWAY COMPANY, Appellant
Attorney:M. L. Clardy, Wm. S. Shirk, James Humphrey and Henry P. Lay for appellant. Sangree & Lamm and Montgomery & Montgomery for respondent.
Case Date:February 19, 1902
Court:Supreme Court of Missouri
 
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Page 1072

66 S.W. 1072 (Mo. 1902)

167 Mo. 99

MINNIER

v.

SEDALIA, WARSAW AND SOUTHWESTERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

February 19, 1902

Appeal from Benton Circuit Court. -- Hon. W. W. Graves, Judge.

Reversed and remanded.

M. L. Clardy, Wm. S. Shirk, James Humphrey and Henry P. Lay for appellant.

Instruction 13, as asked by defendant, is the law. The evidence shows that the car, the forward truck of which was derailed, had been made for and adopted as a part of the car equipment of the company and had been in repeated use on its road in trains operated by the deceased before the accident. These became a part of the implements with which defendant conducted its business, and if these increased the risks of the employment in which deceased was engaged they became a part of the ordinary risks which the employee, by continuing in defendant's employment, assumed. Jackson v. Railroad, 104 Mo. 448; Ragon v. Railroad, 97 Mich. 265; Junior v. El. L. & P. Co., 127 Mo. 79; Bradley v. Railroad, 138 Mo. 293; Fugler v. Bothe, 117 Mo. 475; Burns v. Railroad, 129 Mo. 41; Potter v. Railroad, 71 Mo. 67; Price v. Railroad, 77 Mo. 508; Bohn v. Railroad, 106 Mo. 429; Titus v. Railroad, 136 Pa. St. 618.

Sangree & Lamm and Montgomery & Montgomery for respondent.

(1) The first and second instructions given by the lower court, upon the request of the plaintiff, properly declared the law upon the case made by the plaintiff's evidence. The charge in the petition that the defendant did not exercise ordinary care in providing reasonably safe appliances for the use of the employee injured, and that the appliances furnished were unsafe and dangerous, was fully supported by the evidence. The instructions both refer to that character of appliances, and if the defendant wanted an instruction on its own theory that these appliances were reasonably safe, and that the master had exercised ordinary care in providing them, he should have asked it. The failure of the lower court to so instruct the jury, when the defendant had not asked such an instruction, is not error. (2) It is the duty of the master to furnish reasonably safe appliances, and if he neglects this duty, and furnishes those which are not reasonably safe, the servant's knowledge of its unsafe character does not relieve the master of his liability unless the risk is so obvious as to threaten immediate injury. Then if the servant may reasonably believe that by the exercise of proper care and caution he may safely use such an appliance, and he does exercise such care and caution, he does not thereby waive his right to compensation for any injury which may follow such use, nor is he guilty of contributory negligence. Huhn v. Railroad, 97 Mo. 447; O'Mellia v. Railroad, 115 Mo. 218; Mahaney v. Railroad, 108 Mo. 201; Soeder v. Railroad, 100 Mo. 681; Hamilton v. Mining Co., 108 Mo. 375; Holloran v. Iron Co., 133 Mo. 476; Booth v. Railroad, 75 Mo.App. 516; Smith v. Coal Co., 75 Mo.App. 177; Grattis v. Railroad, 153 Mo. 380; Tabler v. Railroad, 93 Mo. 79; O'Mellia v. Railroad, 115 Mo. 221; Norton v. Ittner, 56 Mo. 351; Cosgrove v. Leonard, 134 Mo. 426. (3) The servant assumes the usual and ordinary risks incident to the business as it is conducted by the master. If it be more dangerous than the method ordinarily adopted, the servant assumes the added risk, but at the same time a higher degree of care is imposed upon the master. The master's duty must be commensurate with the risk assumed by the servant. To establish a degree of care upon common usage, the usage must be shown to be so general and universal as to cover all the varying conditions under which such lines of railroads may be operated. Railroad v. McDaniel, 107 U.S. 454; Railroad v. McDade, 135 U.S. 554. (4) The thirteenth instruction, as prayed by the defendant, was properly refused by the court below because it omits Minnier's knowledge or such knowledge as he might have acquired by ordinary care. Bradley v. Railroad, 138 Mo. 293.

OPINION

[167 Mo. 102] MARSHALL, J.

The plaintiff recovered a judgment for five thousand dollars damages for the death of her husband on the second of November, 1897, caused by an accident on the defendant's road at a point about three miles north of Warsaw. Her husband was the engineer of the train. The defendant appeals.

The negligence charged in the petition is, "first, that the [167 Mo. 103] roadbed, track, ties, bridges and trestles were out of repair and were not in a reasonably safe and sound condition; second, that the defendant failed to furnish a sufficient number of competent brakemen to handle the train, and that one of those employed was incompetent, unskilled and inexperienced; and third, that the defendant's road is a narrow-gauge road, three feet wide, and that the defendant negligently put a broad-gauge car mounted upon narrow-gauge trucks in the train, heavily loaded, so that the same was top-heavy, and that said car would not adjust itself to the tracks and curve, and that in consequence of all such alleged negligent acts the broad-gauge car, so mounted, left the track and became derailed, and that by reason of the insufficiency and incompetency of the brakeman, the train could not be stopped until it was on a trestle or bridge, with the result that the top-heavy broad-gauge car broke through and toppled over, pulling the said locomotive with it," and killing the engineer, the plaintiff's said husband.

The answer is a general denial, except as to the owner-ship of the road, and the fact that the plaintiff's husband was the engineer, and a special plea of assumption of risks, among which was the risk that caused the accident. The reply is a general denial.

The defendant owns a narrow-gauge railroad, running from Sedalia to Warsaw, and the deceased had been employed as an engineer on the road for quite a long time before the accident. The train in question consisted of the engine, six freight cars, loaded with merchandise, a baggage car and a passenger car. The broad-gauge car mounted on the narrow-gauge trucks, was placed next to the engine, which the evidence shows was the usual and proper place to put it, and was loaded to within six or eight inches of the

Page 1073

top with shingles. The accident occurred at a bridge or trestle about three miles north of Warsaw. There is a slight curve in the road just north of the trestle, and a down grade. The broad-gauge car was sound, well constructed, and had been in use on the road about [167 Mo. 104] a month or six weeks before the accident. When the train approached the trestle it was moving slowly, with steam shut off and under good control. The trestle or bridge was about 300 feet long. About one hundred and ten or fifteen feet north of the bridge or trestle the forward trucks of the broad-gauge car jumped off the track. The rear trucks remained on the track. This caused the cars behind it to also leave the track. The train ran on, the forward trucks of the broad-gauge car and the trucks of the other cars running or bumping on the cross-ties, until all the train except the passenger car was on the bridge or trestle. Then the engineer succeeded in bringing the train to a full stop. When this was done one of the narrow-gauge cars about the middle of the train toppled over and fell off the bridge, and this caused the cars behind and before it to also turn over alternately, that is, first one behind it and then one in front of it, until the broad-gauge car was finally affected, and it then turned over and fell off the bridge and dragged the engine over with it. The cars fell to the bottom of the ravine, which was some thirty or forty feet deep, measured from the top of the bridge. Every one jumped off and escaped injury except the engineer. He went down with the engine and was killed. The broad-gauge car was numbered 1001. The evidence as to the condition of the track and the trestle is so conflicting, as to leave no doubt that the witnesses on one side or the other, committed rank perjury in describing it. Counsel for plaintiff have submitted the following epitome of what their witnesses swore to:

"For instance, as to the condition of the track:

"First: The evidence clearly shows that at a point three or four feet, at least very close, to the place where the trucks of the car No. 1001 jumped the rail there was a low joint and a body of ties so decayed and unsound as to be wholly incapable of supporting the rail; that at this point the wheels of the truck under the car 1001 mounted the rail and ran along for three or four feet upon the ball of the rail and then [167 Mo. 105] fell down upon the ties. From this point up to the commencement of the trestle, which was 110 feet, the ties were put in about twenty-five inches from center to center, and this would make forty-eight ties between these two points, and some witnesses who counted the ties put the number at forty-eight. Other witnesses stated the number of ties between these points was forty-five. The great bulk of the ties between these points were shown by our witnesses to be rotten, decayed and doty. Some of said ties, while on the surface appearing all right, were a mere shell and rotten on the inside, and the witnesses estimated the number of such rotten ties in said 110 feet from fifteen to twenty-nine. For instance Mr. Gregg, one of our witnesses, puts the number at fifteen. Mr. Allen puts the number at twenty. Other of our witnesses put the number of rotten ties from fifteen to...

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