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
 
FREE EXCERPT

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 might lawfully be upon them, whether passengers, servants, or others. Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298; Flynn v. Railroad, 78 Mo. 195; Snow v. Railroad, 8 Allen, 441. (d) The duty of inspection was affirmative, and should have been continuously fulfilled and performed. Macy v. Railroad, 28 N.W. 249; Greenleaf v. Railroad, 29 Iowa 14; Buzzell v. Mfg. Co., 48 Me. 113; Ford v. Railroad, 110 Mass. 241; Mullan v. Steamship Co., 78 Pa. 25; Railroad v. Jackson, 55 Ill. 492; Harper v. Railroad, 47 Mo. 567; Boothe v. Railroad, 73 N.Y. 38. (2) There was evidence to support the verdict. (a) While the burden of proof is upon the employe to show the negligence of the employer, he is not bound to do more than raise a reasonable presumption of negligence on the part of the employer. Wharton on Neg., sec. 428; Johnson v. Railroad, 26 N.W. 347; Gillman v. Railroad, 10 Allen, 233; Coombs v. Cordage Co., 102 Mass. 596; Huddleston v. Machine Shop, 106 Mass. 282; Laning v. Railroad, 49 N.Y. 521; Railroad v. Sullivan, 63 Ill. 295; Hart v. Bridge Co., 80 N.Y. 622; Hoge v. Railroad, 23 N.W. 14; Mynning v. Railroad, 26 N.W. 514; Fuller v. Jewett, 80 N.Y. 46; Railroad v. Herbert, 116 U.S. 642. (b) If the structure was defectively constructed, out of repair, or insecure, it is for the jury to say whether the defendant, by ordinary care, could have discovered it. Tuttle v. Railroad, 48 Iowa 236; Tierney v. Railroad, 23 N.W. 229. (c) The span of the bridge which went down "was insufficient to bear the weight of the train." Every panel that went down had a pony bent. These bents were not constructed as required in "safe bridge building." The track was moved from the center of the bridge every time the pile driver was used. It caused the bridge to vibrate and weave. (d) The evidence discloses gross negligence in the inspection of the bridge. (e) Under plaintiff's contract of hiring he is not to be regarded as employed in the same general service as hands running the train or working on the bridge. O'Donell v. Railroad, 59 Pa. St. 239; Gillen-water v. Railroad, 5 Ind. 339; Fitzpatrick v. Railroad, 7 Porter (Ind.) 436; 1 Redf. on Railroads, 526. (f) The defendant waived its demurrer to plaintiff's evidence when it proceeded with its evidence and supplied any defect there may have been in plaintiff's case. McCarty v. Railroad, 15 Mo.App. 385; Cadmus v. B. & T. Co., 15 Mo.App. 86. (3) No error was committed by the court below in the admission of evidence.

Black, J. Ray, J., absent; Sherwood J., dissents.

OPINION

Page 231

[95 Mo. 273] 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...

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