Bowen v. Chicago, B. & K. C. Ry. Co.

• Decision Date: 07 May 1888
• Citation: 8 S.W. 230,95 Mo. 268
• Court: Missouri Supreme Court
• Parties: BOWEN v. CHICAGO, B. & K. C. RY. CO.

8 S.W. 230

95 Mo. 268

BOWEN v. CHICAGO, B. & K. C. RY. CO.

Supreme Court of Missouri.

May 7, 1888.

1. MASTER AND SERVANT — DEFECTIVE APPLIANCES — NEGLIGENCE OF MASTER — QUESTION FOR THE JURY.

Plaintiff, an employe, was injured, without negligence on his part, by the falling of a temporary bridge which he was crossing on defendant's train. The bridge was designed for the passage of trains, the operation of a pile-driver, and the construction of a permanent bridge therefrom. The bridge had been in use for several days. All the details of the construction and inspection of the bridge were before the jury. Held, that it was for the jury to say whether defendant used reasonable care in the construction and inspection of the bridge, keeping in view the purpose for which it was to be used.

2. SAME — DEFECTIVE APPLIANCES — NEGLIGENCE OF MASTER — DEGREE OF CARE.

Where defendant furnishes for his employes a temporary bridge for the passage of construction trains, and the construction of a permanent bridge therefrom, the fact that the bridge was built under a competent foreman, and competent inspectors were afterward furnished, does not free defendant from liability to such employes for defects in the construction and repair of the bridge which defendant could, in the exercise of ordinary care, have known of.¹

3. SAME — DEFECTIVE APPLIANCES — EVIDENCE.

In an action against a railroad company for personal injuries from a falling bridge, evidence that the piles, under a part of the bridge that did not give way, leaned down the river, and were braced before the accident, is admissible as tending to show the general character of the structure, the weight to be given the evidence being for the jury.

4. SAME — DEFECTIVE APPLIANCES — NEGLIGENCE OF MASTER — INSTRUCTIONS.

In an action, by an employe, for personal injury, an instruction that plaintiff would be entitled to recover if defendant knew, "or by the use of ordinary care in the inspection of said bridge or otherwise" might have known, that it was unsafe, does not, by the use of the words "or otherwise," call for the highest degree of care possible on defendant's part.²

5. JURY — PROVINCE OF — FINDING THAT THERE IS EVIDENCE AS TO A FACT IN QUESTION.

Where an interrogatory submits to the jury the question whether there is any evidence tending to prove an alleged fact, the answer will be disregarded, the question being one of law for the court.

6. APPEAL — REVIEW — DEMURRER TO EVIDENCE.

Where defendant puts in his evidence, after interposing a demurrer to plaintiff's evidence which was overruled, and the evidence as a whole entitles plaintiff to go to the jury, the demurrer will not be considered on appeal, though it should have been sustained when it was interposed.

SHERWOOD, J., dissenting.

Appeal from circuit court, Carroll county.

H. H. Trimble, Palmer Trimble, Anderson, Davis & Hageman, Mirick & Young, and Eads & Graham, for appellant. Waters & Wyne, for respondent.

BLACK, J.

Defendant appealed from a judgment in a personal damage suit, and insists that the evidence does not support the verdict. The facts disclosed are these: In the course of the construction of its road the defendant built a temporary bridge, or false work, over Grand river, in Chariton county. This bridge was used for the erection of the permanent structure therefrom, and for the passage of construction trains. It had been so used for 11 days before the accident in question. Plaintiff and others, a gang of track-layers, took the evening construction train for their lodging-place, on the east side of the river, and, as the train was passing over the bridge, about 100 feet of it gave way, the engine and several cars went down, and the plaintiff, to save his life, jumped from the car, landed in the river, and received the injuries of which he complains. It is not claimed that he was guilty of negligence. The charge of negligence is that the bridge was not of sufficient strength to allow the train to pass over it in safety, and that it was insecure and in an unsafe condition at the time it gave way. Four piles were driven in a line with the current of the river, and on the top of these was placed a sill, some 15 feet above the water. On this sill were placed four posts 16 feet high, with a cap on top. These bents were 17 feet apart and extended from shore to shore, — a distance of some 300 feet or more. In that part of the bridge which gave way, a pony bent was constructed on each of the bents before described, consisting of three posts with a cap, to receive the stringers upon which the ties rested. There is evidence that the plan of the bridge was the standard plan for permanent wooden bridges where there is no driftwood, and that the timbers and material used were of the standard size and of good quality. The evidence also shows that the posts of the pony bents were not placed directly over the posts beneath; that the piles under one bent were far out of a perpendicular position; but this bent was next to the shore, had been braced a day or so before the accident, and was not in that part of the bridge which fell; that a pile-driver, built upon trucks and weighing some 30 tons, was operated from the track on the bridge, the use of which caused the bridge to vibrate and throw the track out of line, so that frequent inspection of the bridge was required. One witness says the ties were not spiked to the stringers, but others say every fifth or sixth tie was spiked. The track was constructed in such a way that it could be moved out of line, from time to time, and not interfere with the work on the permanent bridge.

1. As between master and servant, the mere fact that an appliance proves to be defective, and the servant is injured, does not make out a prima facie case for the servant of negligence on the part of the master. But that is not this case. Here all the details of the construction of the bridge and its inspection were before the jury, so that the case does not stand alone on the fact that the bridge fell and the plaintiff was injured. The measure of the defendant's duty is reasonable and ordinary care, both in the construction of the bridge and in keeping it in repair. Reasonable and ordinary care must always be determined in the light of the dangers to be reasonably apprehended. It is clear that more care is required in the construction of a temporary bridge, designed for the passage of trains and the operation of such a pile-driver therefrom, than in one simply designed for the passage of trains. While the plaintiff did not call any expert bridge builders to show that the bridge was defective in its construction, still it was competent for the jurors to say, with all of the details before them, whether the defendant had used reasonable and ordinary care and foresight in erecting this structure, keeping in view the purposes for which it was to be used. The same may be said of the inspections. The superintendent says he inspected the bridge three or four times each day, — three times on the day it fell, — and that he saw nothing wrong and another witness says he inspected it at least twice a day. Forces of men were at work on both sides of the river, and at different places on the bridge, and some of these...