8 S.W. 230 (Mo. 1888), Bowen v. Chicago, Burlington & Kansas City Railway Co.

Citation:8 S.W. 230, 95 Mo. 268
Opinion Judge:Black, J.
Party Name:Bowen v. The Chicago, Burlington & Kansas City Railway Company, Appellant
Attorney:H. H. Trimble, Palmer Trimble, Anderson, Davis & Hagerman, Mirick & Young and Eads & Graham for appellant. Waters & Wynne for respondent.
Judge Panel:Black, J. Ray, J., absent; Sherwood J., dissents.
Case Date:May 07, 1888
Court:Supreme Court of Missouri
 
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Page 230

8 S.W. 230 (Mo. 1888)

95 Mo. 268

Bowen

v.

The Chicago, Burlington & Kansas City Railway Company, Appellant

Supreme Court of Missouri

May 7, 1888

Appeal fro Carroll Circuit Court. -- Hon. J. M. Davis, Judge.

Affirmed.

H. H. Trimble, Palmer Trimble, Anderson, Davis & Hagerman, Mirick & Young and Eads & Graham for appellant.

(1) The plaintiff, an employe of defendant, riding on a construction train across the bridge to and from his work, while so riding was an employe and not a passenger. Russell v. Railroad, 17 N.Y. 136; Gilshannon v. Railroad, 10 Cush. 228; Regan v. Railroad, 23 Pa. St. 384; Logan v. Railroad, 14 Gray, 466; Gilman v. Railroad, 10 Allen, 233; Railroad v. Soliman, 11 Kas. 83, 92; McQueen v. Railroad, 15 A. & E. R. R. Cas. 227; Shultz v. Railroad, 36 Mo. 13, 30; Higgins v. Railroad, 418, 433. (2) The mere fact that the bridge fell and that plaintiff was injured thereby, does not, as between the master and servant, raise a presumption of negligence on the part of the master; nor does it, without more, justify a verdict against the master. Wood on Master and Servant, p. 800, sec. 419; Priestly v. Fowler, 3 M. & W. 1; Railroad v. Higgins, 36 Mo. 418, 432; Shultz v. Railroad, 36 Mo. 13, 32; Lockwood v. Railroad, 6 A. & E. R. R. Cas. 151, 160; DeGruff v. Railroad, 76 N.Y. 125, 131; Porter v. Railroad, 71 Mo. 66, 78, 79; Cotton v. Wood, 8 C. B. 572; Condon v. Railroad, 78 Mo. 567, 572, 573; Railroad v. Milliken, 8 Kas. 647, 651, 652; Railroad v. Troesch, 68 Ill. 545, 552; Railroad v. Conroy, 61 Ill. 162; Duffy v. Upton, 113 Mass. 544. (3) Instruction number two given for plaintiff was erroneous. The master is not required to furnish absolutely safe appliances. Covey v. Railroad, 86 Mo. 635; Elliott v. Railroad, 67 Mo. 27. Nor was the error in the instruction cured by others which correctly stated the rule as to the master's knowledge. State v. McNally, 87 Mo. 644; Simmons v. Carrier, 60 Mo. 581; Stevinson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 508; Frederick v. Allgaier, 88 Mo. 603. (4) The bridge in question being a temporary structure, like a scaffold or other structure, made temporarily to aid in completing some permanent structure, defendant is not liable for any defects if it selected a competent bridge foreman to plan the temporary bridge, or false work as it is called, supplied good materials, sufficient in size, quality, and quantity, and supplied competent mechanics to do the work; and if such temporary bridge was planned by such foreman and by such mechanics with such materials. Kelley v. Norcross, 121 Mass. 508, 510; Killea v. Faxon, 125 Mass. 485-6; Armour v. Hahn, 111 U.S. 313, 318; Peschel v. Railroad, 62 Wis. 338; Arkerson v. Dennison, 117 Mass. 407, 412; Wilson v. Merry, L. R., 1 S. C. App. 326. (5) The standard of care to be used in such cases would be the care exercised by prudent and careful railroad companies; not such care as non-experts exercise. Pershing v. Railroad, 32 N.W. 488; Meier v. Railroad, 64 Pa. St. 227; Railroad v. Thomas, 1 A. & E. R. R. Cas. 87; Railroad v. Huntley, 38 Mich. 537; Railroad v. Coleman, 28 Mich. 440; Railroad v. Newell, 3 N.E. 836; Jones v. Railroad, 9 Heisk. 27; Wharton on Neg., sec. 636; 2 Redfield on Railroads (5 Ed.) 230; Weams v. Railroad, 80 Ky. 420.

Waters & Wynne for respondent.

(1) Plaintiff's second and third instructions were properly given. (a) The servant is entitled to safe instrumentalities, including track, bridges, etc. Dale v. Railroad, 63 Mo. 458; Gibson v. Railroad, 46 Mo. 167; Cummins v. Collins, 61 Mo. 522; Paulmier v. Railroad, 32 N. J. 151; Vosburgh v. Railroad, 94 N.Y. 374; Coughlry v. Glove Co., 56 N.Y. 124; Davis v. Railroad, 55 Vt. 84; Wood M. & S., p. 687, secs. 329, 345; Behm v. Armour, 58 Wis. 1; Weerns v. Meithieson, 4 Macq. H. L. 215; Harrison v. Railroad, 31 N. J. L. 293; Railroad v. Orem, 49 Texas, 341; Railroad v. Herbert, 116 U.S. 642. (b) If the bridge was improperly or defectively constructed, or in an unsafe or insecure condition, and defendant knew it, or, by the use of ordinary care, might have known it, the liability of defendant was fixed. Wharton on Neg., sec. 211; Gibson v. Railroad, 46 Mo. 167; Devitt v. Railroad, 50 Mo. 305; Lewis v. Railroad, 59 Mo. 495; Cummins v. Collins, 51 Mo. 522; Whalen v. Church, 62 Mo. 326; Dale v. Railroad, 63 Mo. 455; Porter v. Railroad, 71 Mo. 66; Siela v. Railroad, 82 Mo. 430; Covey v. Railroad, 86 Mo. 635. (c) It was the duty of the defendant to keep its road and works and all portions of its track in such repair and so watched and tended as to insure the safety of all who...

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