Bassett v. Wabash Railroad Co.

• Decision Date: 07 October 1912
• Citation: 150 S.W. 720,166 Mo.App. 619
• Parties: WILL O. BASSETT, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

150 S.W. 720

166 Mo.App. 619

WILL O. BASSETT, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 7, 1912

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

AFFIRMED.

Judgment affirmed.

J. L Minnis and Robertson & Robertson for appellant.

M. J Lilly and Hunter & Chamier for respondent.

OPINION

JOHNSON, J.

--Plaintiff sustained personal injuries while in the service of defendant as a brakeman and alleges in his petition that his injuries were caused by negligence of defendant. The answer is a general denial and pleas of assumed risk and contributory negligence. Verdict and judgment were for plaintiff in the sum of three thousand dollars and the cause is here on the appeal of defendant.

The injury occurred in defendant's yards at Mexico while the crew of a local freight train of which plaintiff was head brakeman was switching a car of lumber to the team track for unloading. The train had left Moberly that morning and was bound for Montgomery City. On arriving at Mexico its crew followed their usual custom of doing the switching necessary to be done in the yards at that point and were so engaged when the injury occurred. The car of lumber in question had come from St. Louis the day before and was being switched to the team track when one of its brake shoes fell to the track and broke. A fragment from the broken shoe struck plaintiff in the face and injured him. The car was owned by another railroad company and was received by defendant at St. Louis for transportation to Mexico, its destination. The brake and brake shoe were of standard make and may thus be described. The brake shoe was cast iron about fourteen inches long, four or five inches wide and two inches thick; weighed twenty or twenty-five pounds and was curved to fit the rim of the car wheel against which it would be pressed to retard the motion of the wheel. The convex side of the brake shoe was attached to the concave side of the brake head which, in turn, was attached to the brake beam. The adjoining sides of the brake shoe and brake head were provided at the ends and in the middle with interlocking perforated lugs. When in position the holes in the lugs met in a way to form a continuous vertical opening for the reception of a key that locked the brake shoe to the brake head. The key was of iron or steel, was about fourteen inches long and an inch wide, was curved to conform to the curvature of the line of contact between the brake shoe and break head and was inserted into the channel through the lugs from the top. A head at the top of the key kept it from working down. The arrangement of the lugs and the curvature of their plane of attachment were designed to hold the key firmly in position and to give proper rigidity to the device. Plaintiff was standing near the track giving signals to the engineer when the brake shoe became detached from the brake head and fell. It is his contention that the mishap was caused by the loss of the brake key occasioned by the worn and defective condition of the brake shoe and the interlocking lugs which had so impaired the device that the key was not held in position by the lugs but had become loose and had worked upward by the jolting of the wheels while the car was running until it had fallen out.

The petition alleges that plaintiff "was struck by said brake shoe and by a piece or pieces thereof by and in direct and immediate consequence of the negligent failure and omission of defendant to repair and keep in repair said brake shoe, and by the negligent failure and omission of defendant to replace said dangerous, defective and unsafe brake shoe with one that was safe and thus furnish and provide him, the said plaintiff, with reasonably safe and sufficient machinery and appliances for the equipment, movement and operation of said train and of the cars thereof and of said other cars in said railroad yards, and of the negligent failure and omission of defendant to properly inspect said train and cars when defendant knew, or by such inspection might have known of the defective condition of said brake shoe and by reason of the negligent failure and omission of defendant to warn plaintiff of the dangerous and defective condition of said brake shoe."

The evidence of plaintiff tends to show that the brake shoe was old and so worn that its attachment to the brake head had become defective and insecure and that the key was not held in position by the lugs which also had become worn but was so loose that it easily could have been worked out of its position by the jarring of the wheels in running over rough places in the track. The brake shoe was broken in two pieces and plaintiff who examined the pieces two days after the injury testified they...