Bender v. St. Louis & S. F. Ry. Co.

• Citation: 137 Mo. 240,37 S.W. 132
• Court: United States State Supreme Court of Missouri
• Decision Date: 07 October 1896
• Parties: BENDER v. ST. LOUIS & S. F. RY. CO.

37 S.W. 132

137 Mo. 240

BENDER v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri, Division No. 2.

October 7, 1896.

RAILROADS — DEFECTIVE APPLIANCES — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — EVIDENCE — QUESTION FOR JURY — PLEADING.

1. A railroad company which undertakes to haul a foreign car, and has an opportunity to inspect

it, is negligent if it fails to discover and repair dangerous defects in the coupling appliances.

2. Though a railroad company is not bound to adopt any particular kind of machinery, it must see that the kind it does use is reasonably safe for the work designed.

3. In an action by a brakeman to recover for injuries received while uncoupling cars, it appeared that one of the cars belonged to another railroad company, and had originally been equipped with drawbars having a safety lug that had been broken off several days before the car was inspected by defendant's inspectors; that the deadwood was so worn that it offered no impediment to a jar on the springs, and that portions of the deadwood had been split off; that while plaintiff was uncoupling the car, and when the engineer gave slack, plaintiff's hand, which was on the coupling pin, was rammed into the broken place, and crushed; that before the train moved there was a space of but 9 inches between the cars, whereas the ordinary distance was 20 inches; that plaintiff had not seen the car, and had not been warned of any defect, nor had he been called upon to examine the coupling; that some of the railroads had drawbars with these lugs attached, while others used the drawbars without any attachment. Held, that a demurrer to the evidence was improperly sustained.

4. An allegation that the car by which plaintiff was injured while attempting to uncouple it was defective "in this: that the lip on the drawbar at one end of said car was broken off, and the plate on the deadwood on the bumper at the same end * * * was broken and worn out, and said car was so that there was nothing to prevent the drawbar from going back under said car, and thereby making it dangerous and unsafe for brakemen in coupling and uncoupling," — is broad enough to cover any defect in the coupling appliance which would keep the drawbar from passing under the car.

Appeal from circuit court, Jasper county; W. M. Robinson, Judge.

Action by Jacob A. Bender against the St. Louis & San Francisco Railway Company to recover damages for personal injuries. A demurrer to the evidence was sustained, and plaintiff appeals. Reversed.

McReynolds & Halliburton, for appellant. L. F. Parker and J. T. Woodruff, for respondent.

GANTT, P. J.

The sole question for our determination at this time in this case is the propriety of sustaining the demurrer to the evidence. Under our system of practice, a demurrer to the evidence admits every fact which the jurors may infer if the evidence were before them, and should only be sustained when the evidence, thus considered, fails to make proof of some essential averment. Rine v. Railroad Co., 100 Mo. 228, 12 S. W. 640; Kelley v. Railroad Co., 75 Mo. 138; Myers v. City of Kansas, 108 Mo. 480, 18 S. W. 914. When the facts are disputed, or the credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from the facts proven, the case, under proper instructions, should be submitted to the jury. It is for the jury, and not the court, to pass on the weight of evidence, where there is any substantial evidence. These fundamental principles must often be invoked in the ever recurring damage cases based upon negligence. The master is bound to use reasonable care and precaution in furnishing his servant safe appliances with which to do his work, and in keeping them in good order and condition, and the servant does not assume the risk of danger from the use of unsafe machinery unless the defects are so glaring or obvious that a reasonably prudent man would not attempt to use them. Ordinary care requires a railroad company to inspect the cars which it requires its brakemen to handle, and this duty also requires reasonable inspection of foreign cars which it handles in order to discover defects which may endanger the lives and limbs of its servants. The constitution does not compel it to haul cars belonging to other companies which are so defective as to endanger the safety of its servants. The learned circuit court held that plaintiff made a prima facie case on his own evidence, but, upon the whole evidence, sustained the demurrer.

The grounds of recovery are tersely stated in the petition to be "that plaintiff was employed by defendant as a brakeman on its freight train No. 35, going west from Monett, Mo., to Neodesha, Kan., on July 30, 1893; that there was placed in said train by defendant a Baltimore & Ohio freight car, No. 9,380, which said car was defective and unsafe to use in a train, and very dangerous to brakemen in coupling and uncoupling, in this: that the lip on the drawbar at one end of said car was broken off, and the plate on the deadwood on the bumper at the same end of said car was broken and worn out, and said car was so that there was nothing to prevent the drawbar from going back under said car, and thereby making it very dangerous and unsafe for brakemen in coupling and uncoupling said car." The evidence disclosed beyond all cavil the employment of plaintiff as a brakeman on defendant's line from Monett, Mo., to Neodesha, Kan.; that Monett was the end of the division, and all trains going west were made up there, and that the company had inspectors there, whose duty it was to examine the cars, and see that they were in safe condition for the traffic, and for the employes to handle. It was also in evidence that it was no part of the duty of the trainmen to make up the train or examine the cars, but to assume...