Harty v. St. Louis, Iron Mountain & Southern Railway Co.

Decision Date04 June 1888
Citation8 S.W. 562,95 Mo. 368
PartiesHarty v. St. Louis, Iron Mountain & Southern Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Reversed and remanded.

Bennett Pike and H. G. Herbel for appellant.

(1) The court erred in admitting incompetent and illegal evidence offered by plaintiff. (2) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case. Moore v. Railroad, 85 Mo. 588; Hoke v Railroad, 88 Mo. 369; Railroad v. Smith, 9 Lea, 685; S. C., 15 Am. & Eng. Ry. Cas. 224; McQueen v Railroad, 15 Am. & Eng. Ry. Cases, 226; Railroad v. Kenney, 64 Ga. 100. (3) The court erred in giving the instructions asked by plaintiff. See authorities supra. (4) The court erred in refusing to give the instructions asked by defendant. See authorities supra.

J. W. Collins and A. R. Taylor for respondent.

(1) There are two grounds of recovery stated in the petition, viz., a failure to supply a sufficient number of able-bodied men to operate the hand-car, and, second, that the hand-car was defective and in an unsuitable condition. The evidence of plaintiff tends to establish both assignments. (2) The court did not err in overruling defendant's demurrer to the evidence. Porter v. Railroad, 71 Mo. 77; Porter v. Railroad, 77 Mo. 79; Waldhier v. Railroad, 87 Mo. 48. The section foreman had charge of the men, and in directing them, his acts were those of the master. Moore v. Railroad, 85 Mo. 588; McDermott v. Railroad, 87 Mo. 294; Ischer v. Railroad, ante, p. 262.

OPINION

Norton, C. J.

This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant. Plaintiff had judgment, from which the defendant has appealed, and assigns for error the action of the court in admitting improper evidence and in giving and refusing instructions.

It is alleged in the petition that plaintiff was in the employment of defendant as a trackman and under the direction of one Frank Roach, defendant's section foreman; that he was ordered by said Roach to get on a hand-car, and run it to a certain switch and remove it from the railroad in order to get it out of the way of an approaching train; that, to properly control said hand-car, it required two able-bodied men to be on it; that the other man on the car with him was physically incompetent to aid plaintiff in controlling the car; that, in the performance of the duty assigned him, one of his legs was caught between the cog-wheels and boxing of said car whilst performing said work, and was greatly lacerated, stiffened, and made shorter than the other. It is then alleged that plaintiff was so caused to be injured by the negligent act of defendant's agent in failing to have a man competent and suitable to aid plaintiff in controlling said car whilst performing said work; that the machinery of said car was in a defective condition; that at the time there was placed upon said car a keg of water in such a position that the brake of said hand-car could not be worked to control its movements, and such defective condition of the machinery of said hand-car directly contributed to cause plaintiff's injuries.

On the trial plaintiff testified on his own behalf and gave this account as to the accident: "I was standing on the side of the car where the brake was, and Seth (the man with him on the car) told me to set the brake and stop the car; I could not reach the brake because there was a water-keg and some tools in the way. * * * I tried to kick the keg of water off with my foot, but could not. * * * I hove on the lever and it raised me up and my foot swung under the lever of the car-box and went backward dislocating and breaking it. * * * The keg was between the brake and the lever, so that I could not get round to it at all. It was an ordinary hand-car, such as was used on all railroads." He further testified that the keg was on his side and pretty near under the lever that he...

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