Adkins v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 04 April 1927
• Docket Number: No. 5767.,5767.
• Citation: 292 S.W. 1075
• Court: Missouri Court of Appeals
• Parties: ADIKNS v. CHICAGO, R. I. & P. RY. CO.

292 S.W. 1075

ADIKNS v. CHICAGO, R. I. & P. RY. CO.

No. 5767.

Kansas City Court of Appeals, Missouri.

April 4, 1927.

Appeal from Circuit. Court, Mercer County; L. B. Woods, Judge.

Action by Oils Adkins against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

Platt Hubbell and George H. Hubbell, both of Trenton, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,624.88, and defendant has appealed.

The facts show that plaintiff, together with others, including one Mastin, was employed as a section hand by the defendant in laying a new railroad track into a ballast pit. The work was progressing from south to north. Some of the men went ahead placing wooden cross-ties in position, east and west, and laying steel rails thereon, north and south. Plaintiff, Mastin, and an employé by the name of Faulkner were spiking down the east rail, which was being laid in advance of the west rail. The west rail was being spiked by other men, who followed at a little distance to the south. Plaintiff and Mastin were driving the spikes, and Faulkner was working as a "nipper." A nipper is one who is engaged in prying the tie to be spiked up against the rail by means of a claw bar and holding the tie in that position while a spike is being driven into it on each side of the rail.

Plaintiff worked on the outside or on the east side of the east rail, and Mastin on the inside or west side thereof. Plaintiff first measured the proper distance from the east end of the tie so as to ascertain the point at which the spike on the east of the rail was to be driven. The tie was then moved so that the point determined by the measurement should be against the east side of the rail. The nipper then raised the tie against the rail, and plaintiff would start his spike on the east side, about an inch and a half from the north side of the tie. Mastin thereupon started his spike about the same distance from the south side of the tie. The two would then drive their respective spikes into the tie, striking alternately with their spike mauls; plaintiff driving the spike on the east, and Mastin the one on the west side of the rail. In performing their work of driving the spikes, the two men would stand south of the tie in which the spikes were being driven, and on their respective sides of the rail; the two spikes being about 6 or 6½ inches apart during the process of the driving.

Plaintiff was injured on the 2d day of June, 1924, by a piece of metal breaking off of Mastin's spike maul and flying into plaintiff's left arm. The injury occurred when the spikes had been driven about half way. Before plaintiff could get his maul off of the head of the spike which he was driving, Mastin struck over the rail, hitting the top or small part of plaintiff's maul, causing a particle of metal to chip out of the face of Martin's maul as aforesaid. Mastin, testifying for defendant, stated that it was the custom for spike drivers to strike alternately, and that he was following this custom at the time in question; that he struck Plaintiff's maul because plaintiff allowed it to lean over the rail in front of the spike the witness was driving; that he at no time struck over the rail or on plaintiff's side of it. The testimony further tends to show that it was improper and dangerous for a spike driver to strike out of time; in other words, to fail to follow the custom of alternate striking.

The negligence pleaded in the petition is as follows:

"While plaintiff, Adkins, his said foreman, anti said two fellow servants were so driving spikes as aforesaid, and after the plaintiff, Adkins, had struck an outside spike with his spike maul, said Hiram Mastin, without waiting for the plaintiff to remove plaintiff's spike maul from said spike and from said rail, and without allowing the plaintiff a reasonable time in which to do so, did then and there, with a spike maul which he then and there had and held in his hands, negligently strike at said spike, and negligently strike plaintiff's spike maul with the spike maul of said Hiram Mastin,' and negligently strike said steel rail with the spike maul of said Hiram Mastin, all of which striking with said spike maul by said Hiram Mastin was done while plaintiff's spike maul was on and near said spike, and before the plaintiff had time to get his spike maul out of the way, and before the plaintiff had time to dodge or get out of the way himself, and without notice or warning to the plaintiff, and all of which striking by said Hiram Mastin was done hurriedly, quickly, suddenly, improperly, unexpectedly, and negligently."

The answer consists of a general denial, and pleads contributory negligence in that

"* * * Plaintiff negligently caused and permitted a spike maul to turn or lean over the rail in the path of the blow of a fellow servant; that, if any dangerous method or manner of work was used by plaintiff's fellow servant, plaintiff had full knowledge thereof, and negligently continued to work with full knowledge thereof, and negligently failed to inform defendant thereof."

Defendant insists that the court erred in refusing to give its peremptory instruction at the close of all the testimony, because it is claimed that plaintiff was negligent in continuing to work with full knowledge of the alleged danger caused by the negligence of Mastin, and without notice or protest to defendant. The evidence in reference to the claim of contributory negligence of plaintiff shows that he and Mastin were expert spike drivers, and that they had been working together in driving spikes for about two weeks before the injury. Plaintiff testified that shortly after they started to work he noticed that Mastin was hitting "two licks to my one different times. I cautioned him different times in the two weeks. I called him down sometimes to get him to slow down on it. * * * It is dangerous to spike that way; * * * this is the reason I called him down." He testified that he did not bring the matter to the attention of the foreman because "I didn't dictate to the foreman I worked for"; that he did not know whether the matter had been brought to the attention of the foreman in any other manner; that "I cautioned him (Mastin) twice that morning (of the injury) about driving so fast; that he should take his time; he couldn't gain nothing by it." He further testified that he did not remember whether Mastin had been striking out of time shortly prior to the injury. Mastin, as aforesaid, stated that he was striking alternately at that time. The evidence further shows that at the time of the injury Overton, the foreman, was about 150 feet south of the men and shortly thereafter went to where plaintiff was hurt.

We cannot say that plaintiff was guilty of contributory negligence as a matter of law because he continued to work with Mastin, knowing that the latter struck out of time at intervals and knew that it was dangerous to do so and continued to work with him without notifying or protesting to any one but Mastin. There is some dispute between the parties as to whether Mastin habitually struck out of time or did this only periodically. The inference to be drawn from plaintiff's testimony is that Mastin was not guilty of this continuously. Plaintiff testified that, in order to get Mastin to slow down, the witness "called him down," and that he called Mastin down twice that morning. We infer that Mastin desisted for a period of time after being cautioned by plaintiff. However, if Mastin habitually struck out of time, as claimed by defendant, or even if he did this the greater part of the time, it may be inferred that the foreman knew of it, because he was present and had charge of the men for the two weeks during which plaintiff and Mastin were working together. From the testimony of Overton, it would appear that it would have been of no avail to have protested to him, for the reason he stated that it was proper after the spikes were started for the spike drivers to strike out of time if they so desired; that there was nothing wrong about the men hitting the spikes at the same time, and no more dangerous than if they hit alternately.

While there is no direct evidence that Mastin was striking out of time at the time he hit plaintiff's maul, it may be inferred from plaintiff's testimony to the effect that Mastin struck over the rail and struck plaintiff's maul before plaintiff had an opportunity to withdraw his maul from the stop of the spike, that Mastin was striking out of time at the time of the injury. However, this was not the cause, or at least not the sole cause, of the injury. Had Mastin not struck over the rail, even though he was striking out of time the injury would not have happened. There is no evidence that Mastin had ever done this previous to the time plaintiff was injured. Plaintiff had no reason to foresee that Mastin would strike over the rail by reason of the fact that he at times had struck out of his turn. The evidence tends to show that such a practice of striking over the rail was highly improper, extraordinary, and unusual. Defendant insists that the charge of negligence in the petition was not that Mastin struck over the rail, but that he struck out of time. The...