Smith v. Fordyce

• Citation: 88 S.W. 679,190 Mo. 1
• Parties: SMITH v. FORDYCE et al.
• Decision Date: 20 June 1905
• Court: United States State Supreme Court of Missouri

88 S.W. 679

190 Mo. 1

SMITH v. FORDYCE et al.

Supreme Court of Missouri, Division No. 2.

June 20, 1905.

1. INJURIES TO SERVANT — PETITION — EVIDENCE — VARIANCE.

In an action against a railroad for injuries to a car repairer, the petition alleged that it was the duty of defendant to place cars on a certain switch track which led to a mine, and which was downgrade toward the main line, so that they would not roll onto the main line, and to have placed at the intersection of the switch a derailing switch to prevent the escape of cars, but that, after plaintiff had gone under a car on the main line to repair it, a car that had been placed on the switch track, and negligently left in position so that it was likely to run down, and in such condition that it could not be managed or controlled, started to go onto the main line and caused the injury to plaintiff. The evidence showed that the car was moved by employés of the mine, and that they removed the block which held it in place, whereby it started, and that they were unable to stop it because the brake was loose and the

brake wheel was covered with timbers, so that they could not reach it, and it was shown that there was no derailing switch. Held, that there was no failure of proof because of the fact that there was no allegation in the petition as to the moving of the car by the mining crew.

2. SAME — EVIDENCE — SUFFICIENCY.

In an action for injuries to a car repairer, injured by the escape of a car from a switch track, held that the evidence warranted a finding that the brake on the car had not been set when the car was set out.

3. SAME — FURNISHING APPLIANCES—DUTY OF MASTER.

A railroad company is not bound in its duty toward its servants to adopt every new invention, although it is an improvement; but it is merely its duty to use reasonable care in procuring and keeping its appliances in good condition.

4. SAME — QUESTION FOR JURY.

In an action for injuries to a car repairer from the escape of a car from a switch track, held a question for the jury whether defendant should have had a derailing switch at the junction of the switch track and that where the accident happened.

5. SAME — ASSUMPTION OF RISK.

A car repairer at work on a car on the main line of a railroad does not assume the risk of injury from a car escaping from a switch track and running onto the main line.

6. SAME — TRIAL — INSTRUCTIONS — REQUESTS.

Where defendant, in an action for injuries to a servant, desires to have the question of assumption of risk submitted to the jury, it is his duty to pray an instruction to that effect.

7. SAME — NEGLIGENCE — EVIDENCE — COMPETENCY.

In an action for injuries to a car repairer by a car escaping from a switch track onto the track where he was at work, it was competent to show the absence of a derailing switch at the junction of the switch track and the other track, and that such a device was in common use by defendant.

8. SAME — KNOWLEDGE OF WITNESS.

In an action for injuries to a servant employed by a railroad, a witness was properly permitted to testify as a practical railroad man engaged in the construction and repairing of tracks, and having three years' experience, as to the purpose of a derailing switch and as to where one should be placed.

9. SAME — PROXIMATE CAUSE — CONCURRING NEGLIGENCE.

Where a railroad company failed to provide a derailing switch at the junction of a switch track and the main track, and a car was set out on the switch track, which was downgrade, and the brake was loose, the car being blocked and the brake wheel so obstructed with timbers that it could not be reached, and employés of a mining company which used the switch track negligently moved the car, whereby it ran onto the main track, injuring a servant, the negligence of the mine employés did not relieve the railroad of responsibility for the proximate cause of the injury.

10. PERSONAL INJURIES — MEASURE OF DAMAGES —INSTRUCTIONS.

Where, in an action for personal injuries, the court instructed that in finding for plaintiff the jury might allow him such damages, not exceeding the amount claimed in the petition, as they believed he had sustained, the instruction was not objectionable for failing to give the elements of damage; no instruction on such matter having been requested by defendant.

11. SAME — EXCESSIVE DAMAGES.

In an action for injuries to a strong and active man of 26 years, whereby he lost the use of his left arm, a verdict for $7,500 was not excessive.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Jesse J. Smith against Samuel W. Fordyce and another, as receivers of the Kansas City, Pittsburg & Gulf Railroad Company, and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

S. W. Moore, Cyrus Crane, and J. W. McAntire, for appellants. Howard Gray and Cole & Burnett, for respondent.

GANTT, J.

This is an action, commenced in the circuit court of Jasper county, Mo., against the defendants, as receivers for the Kansas City, Pittsburg & Gulf Railroad Company, to recover damages for injuries received by the plaintiff while in their employ as a car repairer. The petition alleges the incorporation of the defendants as a railroad company, the appointment of the defendants Fordyce and Withers as receivers by the Circuit Court of the United States for the Western District of Missouri, their qualification as such, and their possession of the said railroad and its engines and cars at the times mentioned in the petition; that while said receivers were operating said railroad plaintiff was in their employment as a car repairer, and as such it was his duty to go about the freight and passenger cars of the defendants and repair the same along the line of said railroad; that Joplin was and is a station on the line of said railroad, and near said city and station there was a switch leading from the main line of said road to a lead and zinc mine known as the "Bankers' Mine"; that the said receivers were using said switch under the order of said court to haul cars of coal and other property out to said mine and for other purposes; that from the place where said cars were left at said mine to be unloaded to the main line of the road was downgrade, so that cars left standing on said switch at said mine, unless fastened in some way, would run down to the main line track and other switches with great force and speed, thereby placing plaintiff, while employed in his work of repairing cars on said track, in great danger, and placing all other employés of the defendants and passengers on said road in great danger from said cars starting from said point on said switch and running down and out upon the main line and switches with said great force and speed; that it was the duty of said receivers to have placed at or near the intersection of said switch with the main line what is commonly known as a "derailing switch" or some other means of obstruction, so that, if cars did escape at said switch at said mine and roll down to the main line, they would not run out on the main line, but would be stopped or derailed; that the defendants negligently failed to take any precaution to prevent said cars from starting, when left at said mine, and running down said grade, and out onto the main line and the other switches and spurs of said railroad at said point so operated by the said receivers. "Plaintiff states that on the ____ day of October, 1899, one of the freight cars operated by the defendants as receivers had become out of repair, and the same was attached with their train on the track so operated by said receivers at or near said station on said railroad, and it was the duty of plaintiff to go to said car and under the same for the purpose of repairing it, so that it could be used by defendants in the transportation of freight over said road; that in pursuance of his duty he went upon said track and under said car for the purpose of repairing the same; that, while he was at work performing his duty as repairer as aforesaid, a car that had been placed at said mine by said receivers and negligently left in a position so that it was allowed to run down said switch, and in such condition that it could not be managed or controlled, started and rolled down said switch, increasing its speed as it went, until it reached the main line of said road under great speed, and on account of the negligence of the defendants in failing to have a derailing switch as aforesaid, or using other means at the point mentioned to prevent said car from rolling on said track with great speed, and on account of the negligence of defendants in leaving said car in said situation and condition, it ran with great force into the train to which the car which plaintiff was repairing was attached, and caused the car that plaintiff was repairing to run over plaintiff, thereby breaking and mangling his left arm, so that about four inches of bone next to the shoulder had to be removed, and leaving the plaintiff permanently injured for life; that plaintiff suffered great pain in body and mind from said wound and injury, and has ever since been unable to perform labor, and will always be permanently injured; that the defendant the Kansas City Southern Railway Company has become the purchaser under the order of said court of all the property of said Kansas City, Pittsburg & Gulf Railroad Company, and as a part of said purchase price the said defendant assumed the obligations of said receivers to this plaintiff. Wherefore he prays judgment for ten thousand dollars and costs." The answer was, first, a general denial; second, an assumption of the risks by said plaintiff of said injuries; third, that the said car which collided with the train under which plaintiff was working was set in motion by the acts of third parties over whom defendants had no control, without the knowledge or consent of defendants or either of them. Plaintiff's reply denied all...