Condon v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1883
• Citation: 78 Mo. 567
• Parties: CONDON v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 567

CONDON

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Thos. J. Portis and H. S. Priest for appellant.

George A. Castleman, Andrew Mackay, Jr., and A. R. Taylor for respondent.

HENRY, J.

This suit was instituted in August, 1879, to recover damages for injuries to plaintiff, a servant of defendant, alleged to have been caused by a defective hand-hold on the top of a box car from which plaintiff fell, while in the discharge of his duty as a brakeman at Pacific, a station on defendant's road. The answer contained a general denial, a plea of contributory negligence on plaintiff's part, and also negligence of plaintiff's fellow-servants, and that the car was a foreign car, belonging to another road, and being hauled over defendant's road.

The evidence tended to prove the following facts: The car in question, containing freight, was received by defendant at Kansas City from a connecting road, to be hauled to Cheltenham, a station on defendant's road, near St. Louis. On the day of the accident, the plaintiff with an engineer, fireman and conductor, went from Labadie, a station on defendant's road west of Pacific, with an engine and caboose car to Pacific, under orders to make up there a special train of freight cars, and take it to St. Louis. They arrived at Pacific between six and seven o'clock p. m., when it was so dark as to require the use of lanterns in making up the train. While engaged in switching, plaintiff was ordered by the conductor to get on top of other box cars, attached to the car in question, pass along on the top of said cars and get down from the foreign car by means of a ladder on the side and near the end of said car, placed there to be so used, and pull out a coupling-pin by which said car was attached to a flat car. In obeying said order he slipped and fell, and the hand-hold, to which he held, breaking loose, he was precipitated to the ground, and received the injuries complained of.

The iron bolt by which one end of the hand-hold was secured, appeared after defendant's fall to have been freshly broken, but, at the place where the other end of the hand-hold should have been fastened, a hole was found in the plank, partially filled with cinder, and with iron-rust in the hole. The bolt by which that end of the hand-hold was originally secured was missing. Only at terminal stations, such as St. Louis and Kansas City, was it the duty of or custom for car-inspectors to go on top of cars to inspect them unless so requested by trainmen. At intermediate stations it was the duty of inspectors to examine the wheels, axles and running-gear, but not to go on top of the cars to inspect. Where any of the machinery on top of the cars was out of repair, it was the duty of the trainmen to repair it or notify car-repairers of its condition. With respect to the inspection of this particular car, at Kansas City, the evidence that it was made, is entirely circumstantial. The inspector, Byer, in his testimony did not state that he inspected this identical car; did not recollect that he was on duty February 8th, 1879, but supposed he was; did not know that he had let any car pass on the road with hand-hold loose at one end; if he had inspected a car that had a hand-hold in that condition, he would have seen it.

The court, of its own motion, gave the following instructions to the jury:

1. It was the duty of defendant to furnish and supply to its employes or those engaged in running and operating its trains of cars, machinery and appliances, such as cars and the various appliances thereto belonging, that were reasonably safe, secure and sufficient for the transaction of its business, and, in absence of notice to the contrary, the employes of defendant had the right to assume that the cars and appliances furnished to them with which to work were so safe, secure and sufficient. If you find, therefore, that defendant neglected its duty in this behalf, and that on the day specified in the petition William Condon was in the employ of defendant as brakeman, and was at said time engaged in the prudent and careful discharge of his duties under such employment; and that there was a defective or insufficient hand-hold or appliance upon one of the cars furnished to him, and upon which he was engaged to work at the time, and that by reason or in consequence of such defective or insufficient hand-hold upon the car so furnished him while so engaged in the prudent and careful discharge of his duty, and without any knowledge thereof upon his own part, said Condon fell or was thrown from said car, and was run over and injured by a car or train of cars then being run and operated by defendant, then the verdict of the jury must be for plaintiff.

Although the jury may believe from the evidence that the car in question was a foreign car, (that is a car belonging to some other railroad company,) and that it had been received by defendant from such other company for purposes of transportation, and that when so received the hand-hold thereon was defective, yet, if the jury believe that such defect was known to defendant at and prior to the accident, or that by the exercise of ordinary care and diligence, it might have been known and repaired, defendant is not excused by the fact that it was a foreign car and was in a defective condition when received. Nor is defendant excused by the fact that it had no actual knowledge of any defect in the car, if, by the exercise of ordinary care and diligence, it might have known of such defect prior to the accident.

2. If defendant kept car-inspectors or repairers at Kansas City, St. Louis and other intermediate points, who were charged by defendant with the special duty of examining into the condition of cars at those points and seeing that they were in running order and in safe and proper condition to be used before they were suffered to depart therefrom, then defendant is liable to plaintiff for any neglect of duty on the part of such inspectors and repairers whereby plaintiff was injured, if the jury believe he was so injured in consequence of any such neglect of duty.

3. If the jury find for plaintiff, they will assess his damages at any sum, not exceeding $20,000, which the testimony warrants, and, in determining the amount, the jury are at liberty to take into consideration all the injuries sustained at said time by plaintiff, with the personal pain and suffering and consequences resulting therefrom, whether temporary or permanent, bearing in mind always that it is compensation only which is to be fixed by them for the damage to plaintiff by reason of the negligence of defendant.

4. The mere fact that the injury resulted to plaintiff from a defect in the hand-hold, is not of itself...