Benedict v. Chicago Great Western Railway Company

Decision Date04 January 1904
Citation78 S.W. 60,104 Mo.App. 218
PartiesFORD W. BENEDICT, Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Respondent
CourtKansas Court of Appeals

Appeal from Buchanan Circuit Court.--Hon. W. K. James, Judge.

Cause reversed and remanded.

C. F Strop and W. K. Amick for appellant.

(1) Section 2002 of the statutes of Iowa was introduced in evidence. (2) The courts of this State will enforce the statutes of a sister State. R. S. 1899, sec. 547; Guerney v. Moore, 131 Mo. 650.

James C. Davis for respondent.

(1) In an action by a servant against his master, wherein the former sustains injuries which he charges to be due to the negligence of the latter, no presumption on the part of the latter will be indulged. The negligent act of the master must be established and the burden of establishing it is on the servant. Smith v. Railway, 113 Mo. 70; O'Mallry v. Railway, 113 Mo. 319; Dowell v Guthrie, 99 Mo. 653; Dowell v. Guthrie, 116 Mo 646; Murray v. Railway, 101 Mo. 236. (2) The application of an emergency brake upon a locomotive attached to a train in motion is not, of and in itself, a negligent act, and if such application is made it will be presumed that it was made in the proper exercise of the use for which it was intended, unless the contrary appears by evidence. (3) Where there are two ways in which a given act may be performed, and the person engaged in the performance of the act voluntarily selects the dangerous way when a safer one is apparent to him and is thereby injured, he is guilty of contributory negligence. Moore v. Railway, 146 Mo 572; Bolt & Iron Co. v. Brenhen, 20 Ill.App. 555; Bolt & Iron Co. v. Burke, 12 Ill.App. 369; Anderson v. Railway, 39 Minn. 523.

OPINION

BROADDUS, J.

The plaintiff was a rear brakeman on one of the defendant's freight trains. The train on which he was injured was going from Des Moines, Iowa, to St. Joseph, Mo., on March 16, 1901. There were sixteen cars in the train. The first ten cars back from the engine were equipped with the airbrake; the six rear cars were not equipped with the airbrake. The airbrake was controlled and operated by the engineer on the engine. For all ordinary stops, such as stopping at stations and water tanks, and all cases except emergency, the "service stop," as it was termed, was used. The "service stop" checked the train gradually, but did not lock the wheels. The "emergency stop" was used only for a sudden stop in case of danger, and was a full application of all the brake power, which had the effect of locking the wheels. If a train was moving at a rate of four or five miles per hour and the "emergency brake" was applied it would lock the wheels hard. The effect of stopping the train was almost instantly, and the shock and recoil was unusually severe; while if the "service brake" was applied it would stop the train gradually, and there was no recoil. It was unusual to use the "emergency brake," and when it was applied persons about the train could generally hear the explosive sound which it made.

On the day and at the time plaintiff was injured the train was running at the rate of about four or five miles per hour and was approaching the water tank at Peru, Iowa, for the purpose of supplying the engine with water. It was then getting dusk. Plaintiff had been riding in the cupola of the caboose. Another train was following. As the train approached Peru and was slowing down plaintiff climbed down from the cupola, got his red lantern and the "markers" ready. "Markers" were red lights to be hung on both sides of the rear end of the caboose to designate the rear end of the train. It was plaintiff's duty to put these markers in place. Plaintiff stepped out on the rear platform with the red lanterns and "markers" in his hands. He set one of the "markers" and the lantern down on the platform. He took the other "marker" in one hand, and, holding it by the bail, grasped the iron railing of the platform, and grasped a handhold on the end of the car with the other hand, braced his feet, one against the iron railing and the other against the body of the car, and stood in this braced position waiting for the train to stop. This position was reasonably safe if the train had been properly managed, but while in this position the engineer applied the "emergency brake," which stopped the train almost instantly. The shock was so violent that it tore plaintiff's grasp loose and threw him against the end of the caboose, and the recoil cast him back off the platform on to a bridge and down into a creek. Both of the plaintiff's arms were broken by the fall, and he received other wounds and bruises.

The plaintiff's petition based his right to recover on the ground of negligence of the engineer in applying the emergency brake which was the alleged cause of the injury. The statute of the State of Iowa, where the injury was received, was pleaded and also introduced in evidence. This statute gives a right of action against a railroad company operating a railroad in that State to any employee for damages sustained in consequence of the neglect of a fellow-servant. Section 2002, Statutes of Iowa.

The defense was a general...

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