Siela v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1884
• Parties: SIELA v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 430

SIELA

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.

AFFIRMED.

George W. Easley for appellant.

The demurrer to plaintiff's evidence should have been sustained. The master is not chargeable for defects in machinery causing injury to the servant, unless negligence or fault can be imputed to the master. Wood on Master and Servant, § § 344, 382; Roberts & Wallace's Liability of Employers, (2 Ed.) 113, 169; Scott v. London Dock Co., 34 L. J. Ex. 220; Schultz v. Railroad Co., 64 Mo. 32. The first and second instructions given for plaintiff submit issues not embraced in the pleadings, and upon which no evidence was offered. Waldhier v. Railroad Co., 71 Mo. 514; Price v. Railroad Co., 72 Mo. 414; Edens v. Railroad Co., 72 Mo. 212; Bullene v. Smith, 73 Mo. 151; Ely v. Railroad Co. 77 Mo. 34. In all the instructions given by the court, both for plaintiff and of its own motion, the question, what constitutes negligence and care, was left, both law and fact, to the jury, which was error. Goodwin v. Railroad Co., 75 Mo. 75 ;Yarnell v. Railroad Co., 75 Mo. 583; Zimmerman v. Railroad Co., 71 Mo. 491. The opinions of plaintiff's witnesses that the handle was made of improper wood, “would have no appreciable weight in the scale of evidence” if the witness Groff applied the tests he testified he did. Warner v. Railroad Co., 39 N. Y. 468; 1 Redfield R'y Cases, 403; Pierce on R. R., p. 371; Hough v. Railroad Co., 100 U. S. 218.

James W. Boyd for respondent.

The demurrer to the evidence was properly overruled. If the handle was defective at the time of its construction, and so continued when put to use, it was not necessary to show further notice or knowledge on part of defendant. Greenleaf v. Railroad Co., 29 Ia. 14. It was the duty of defendant to furnish suitable machinery. Long v. Railroad Co., 65 Mo. 224; Lewis v. Railroad Co., 59 Mo. 495; Porter v. Railroad Co., 71 Mo. 66; Gibson v. Railroad Co., 46 Mo. 163. The instructions do not involve any questions not embraced in the issues. Appellant's motion for a new trial does not refer to the instructions given by the court, on its own motion; hence the fourth specification in appellant's assignment of errors is not relevant. “The conclusion reached by the jury is manifestly right, and a different result could not have been reached by them, without manifest injustice, therefore, the verdict ought not to be disturbed.” Noble v. Blount, 77 Mo. 235; see p. 239; Blewett v. Railroad Co., 72 Mo. 583. On the entire case, it is apparent, that the rulings of the trial court were very favorable to appellant, and that appellant has no reason to complain of the result.

NORTON, J.

This action was commenced in the circuit court of Buchanan county to recover damages for personal injuries received by plaintiff in consequence of being thrown from, and run over by a hand car, by reason of the breaking of a handle thereof on which plaintiff was working as the servant of defendant.

The petition alleges among other things, the following as the cause of action:

“That prior to the time plaintiff was injured, the defendant carelessly and negligently furnished to plaintiff for his use in and about said work upon defendant's track, a hand car which was unsafe and dangerous and unfit for use; that said unsafe and dangerous condition of said hand car were known to defendant prior to the time when it was furnished to plaintiff, and until plaintiff was injured * * but were never known to plaintiff until he was injured * * that on, etc., plaintiff was, etc., when the lever and handle of said car, in consequence of said negligent and careless construction, and unsafe and dangerous condition, broke, and by breaking threw plaintiff,” etc. The answer of defendant was a general denial.

Plaintiff on the trial obtained judgment for $1,500, from which the defendant has appealed, and the first error assigned and relied upon is the action of the court in refusing to give an instruction, at the close of plaintiff's evidence, that he was not entitled to recover. Plaintiff introduced as a witness the section foreman, who on the day of the accident, with four hands, the plaintiff being one of them, were operating a hand car on defendant's road. He testified that: “We were going west over the railroad of defendant on a hand car; we had no load on the hand car; while so employed the handle of the car broke, and plaintiff was thrown off and run over by the car; * * the handle broke square off; the handle is made of what I call brash oak, that is brittle wood; I had been using the car about two weeks; it came to me about two weeks before the accident from the car shops at Hannibal; the car had been repaired at the shop; * * the handle which broke was in the car when it came to me, and was new; the plaintiff is near-sighted.” On his cross-examination he said all the men stood with their faces in the direction we were going except the plaintiff; he stood in front of the outside of the handle, and with his back in the direction we were going; the handle broke while he was pulling on it, and his back being in the direction we were going, he of course fell off the car; the car handle is much more likely to break when pulling up than when pushing down; the strain on it is much greater. I don't think there is any proper place for a man on a hand car. I left that to him; if he had been inside the handle and looking in the direction we were going he would not have been thrown off the car; the handle seemed when it came to me ‘to have been painted.’ Dr. Simmons testified as to the nature of the injury.

Kessler, another witness, testified: I was on the hand car at the time of the accident; we were going west and the plaintiff was working one side of the forward handle of the hand car. The handle broke square off the side plaintiff was working, and he fell backward on the track and the car passed over him. I think he was pulling on the handle when it broke; the handle is much more liable to break when the workman is pulling than when he is pushing it; the plaintiff stood outside, and in front of the handle of the car. Standing outside, or in front of the handle is a more dangerous position than standing inside * * The way the handle broke he would not have fell of if he had been standing as we were; if it had been broken when he was pressing down on the handle, and he had been standing with his face the way we were going, he would then have fallen on the track, and the other position he did occupy would have been safer.

Patrick Brady was introduced and testified as follows: “I have been railroading as section hand and section foreman for eighteen years; a great part of the time I was in defendant's employ as section foreman; I am not now; I have known the plaintiff for about twenty years; he worked for me on the defendant's railroad when I was section foreman for about two years, off and on; the first place a man gets on a hand car is the proper place to work in running it; I have never known or made any difference in regard to places where a man should stand in running a hand car.”

On cross-examination this witness said: “When a man is standing on a car, as Siela was, if the handle breaks when he is pushing down he is safe; if it breaks while he is pulling up he will fall off in front of the car; I think a handle is as likely to break pulling up as pushing down, and pushing down as pulling up; when pushing down he puts his whole weight on the handle, and the position plaintiff occupied when the accident happened was safer than that occupied by the other men on the car, if the handle had broken when being pushed down; I did not see the accident.”

Plaintiff, after stating in his evidence that he had not been able to work since the accident, and that he was sound and well before, said: “I always, when on the hand car occupied the position I did the morning I was hurt; I took it from choice; I am very near-sighted, and did not observe any defect in the handle, or that it was made of brash wood before I was hurt; I thought it was a good handle, and could not see any defect in it; I could not tell whether it was light or heavy wood as it was fastened in the lever.”

Mr. Arnold, introduced on part of plaintiff, testified as follows: “I am a carpenter by trade and familiar with wood of different kinds (the broken car handle being identified was here shown to the witness who then said): This is a brittle piece of wood and not fit for the uses to which it was put; I can tell from the color of the wood, its grain and weight, that it is brittle.”

Mr. Frick, introduced on part of plaintiff, testified as follows: “I work in wood and am familiar with all kinds; made car handles for several years; this handle (the broken handle here shown witness) is made from wood of an old tree; it is not fit for car handles or any severe work; when such wood breaks it breaks square off; when made from a younger tree it splits; the handle was very brittle and was made out of very inferior timber; hand car handles should be made of the best kind of timber.

This was all the evidence offered by plaintiff and we think it made out a prima facie case for plaintiff under his petition, and that defendant's demurrer to the evidence was properly overruled. There can be no question but that it was the “duty of defendant to furnish for its servants good, safe and properly constructed machinery and implements for carrying on its business * *. By this, however, it is not meant that he is an insurer of their safety, and under an absolute obligation to provide safe machinery and implements, but only that he is to use reasonable care and precaution in procuring them, and in keeping them in good order and condition.” Porter v. Han. & St. Joe R. R....