Bowen v. Chicago, Burlington & Kansas City Railway Co.

• Decision Date: 07 May 1888
• Parties: Bowen v. The Chicago, Burlington & Kansas City Railway Company, Appellant
• Court: Missouri Supreme Court

8 S.W. 230

95 Mo. 268

Bowen v. The Chicago, Burlington & Kansas City Railway Company, Appellant

Supreme Court of Missouri

May 7, 1888

Appeal fro Carroll Circuit Court. -- Hon. J. M. Davis, Judge.

Affirmed.

H. H Trimble, Palmer Trimble, Anderson, Davis & Hagerman, Mirick & Young and Eads & Graham for appellant.

(1) The plaintiff, an employe of defendant, riding on a construction train across the bridge to and from his work, while so riding was an employe and not a passenger. Russell v Railroad, 17 N.Y. 136; Gilshannon v. Railroad, 10 Cush. 228; Regan v. Railroad, 23 Pa. St. 384; Logan v. Railroad, 14 Gray, 466; Gilman v Railroad, 10 Allen, 233; Railroad v. Soliman, 11 Kas. 83, 92; McQueen v. Railroad, 15 A. & E. R. R. Cas. 227; Shultz v. Railroad, 36 Mo. 13, 30; Higgins v. Railroad, 418, 433. (2) The mere fact that the bridge fell and that plaintiff was injured thereby, does not, as between the master and servant, raise a presumption of negligence on the part of the master; nor does it, without more, justify a verdict against the master. Wood on Master and Servant, p. 800, sec. 419; Priestly v. Fowler, 3 M. & W. 1; Railroad v. Higgins, 36 Mo. 418, 432; Shultz v. Railroad, 36 Mo. 13, 32; Lockwood v. Railroad, 6 A. & E. R. R. Cas. 151, 160; DeGruff v. Railroad, 76 N.Y. 125, 131; Porter v. Railroad, 71 Mo. 66, 78, 79; Cotton v. Wood, 8 C. B. 572; Condon v. Railroad, 78 Mo. 567, 572, 573; Railroad v. Milliken, 8 Kas. 647, 651, 652; Railroad v. Troesch, 68 Ill. 545, 552; Railroad v. Conroy, 61 Ill. 162; Duffy v. Upton, 113 Mass. 544. (3) Instruction number two given for plaintiff was erroneous. The master is not required to furnish absolutely safe appliances. Covey v. Railroad, 86 Mo. 635; Elliott v. Railroad, 67 Mo. 27. Nor was the error in the instruction cured by others which correctly stated the rule as to the master's knowledge. State v. McNally, 87 Mo. 644; Simmons v. Carrier, 60 Mo. 581; Stevinson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 508; Frederick v. Allgaier, 88 Mo. 603. (4) The bridge in question being a temporary structure, like a scaffold or other structure, made temporarily to aid in completing some permanent structure, defendant is not liable for any defects if it selected a competent bridge foreman to plan the temporary bridge, or false work as it is called, supplied good materials, sufficient in size, quality, and quantity, and supplied competent mechanics to do the work; and if such temporary bridge was planned by such foreman and by such mechanics with such materials. Kelley v. Norcross, 121 Mass. 508, 510; Killea v. Faxon, 125 Mass. 485-6; Armour v. Hahn, 111 U.S. 313, 318; Peschel v. Railroad, 62 Wis. 338; Arkerson v. Dennison, 117 Mass. 407, 412; Wilson v. Merry, L. R., 1 S. C. App. 326. (5) The standard of care to be used in such cases would be the care exercised by prudent and careful railroad companies; not such care as non-experts exercise. Pershing v. Railroad, 32 N.W. 488; Meier v. Railroad, 64 Pa. St. 227; Railroad v. Thomas, 1 A. & E. R. R. Cas. 87; Railroad v. Huntley, 38 Mich. 537; Railroad v. Coleman, 28 Mich. 440; Railroad v. Newell, 3 N.E. 836; Jones v. Railroad, 9 Heisk. 27; Wharton on Neg., sec. 636; 2 Redfield on Railroads (5 Ed.) 230; Weams v. Railroad, 80 Ky. 420.

Waters & Wynne for respondent.

(1) Plaintiff's second and third instructions were properly given. (a) The servant is entitled to safe instrumentalities, including track, bridges, etc. Dale v. Railroad, 63 Mo. 458; Gibson v. Railroad, 46 Mo. 167; Cummins v. Collins, 61 Mo. 522; Paulmier v. Railroad, 32 N. J. 151; Vosburgh v. Railroad, 94 N.Y. 374; Coughlry v. Glove Co., 56 N.Y. 124; Davis v. Railroad, 55 Vt. 84; Wood M. & S., p. 687, secs. 329, 345; Behm v. Armour, 58 Wis. 1; Weerns v. Meithieson, 4 Macq. H. L. 215; Harrison v. Railroad, 31 N. J. L. 293; Railroad v. Orem, 49 Texas, 341; Railroad v. Herbert, 116 U.S. 642. (b) If the bridge was improperly or defectively constructed, or in an unsafe or insecure condition, and defendant knew it, or, by the use of ordinary care, might have known it, the liability of defendant was fixed. Wharton on Neg., sec. 211; Gibson v. Railroad, 46 Mo. 167; Devitt v. Railroad, 50 Mo. 305; Lewis v. Railroad, 59 Mo. 495; Cummins v. Collins, 51 Mo. 522; Whalen v. Church, 62 Mo. 326; Dale v. Railroad, 63 Mo. 455; Porter v. Railroad, 71 Mo. 66; Siela v. Railroad, 82 Mo. 430; Covey v. Railroad, 86 Mo. 635. (c) It was the duty of the defendant to keep its road and works and all portions of its track in such repair and so watched and tended as to insure the safety of all who might lawfully be upon them, whether passengers, servants, or others. Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298; Flynn v. Railroad, 78 Mo. 195; Snow v. Railroad, 8 Allen, 441. (d) The duty of inspection was affirmative, and should have been continuously fulfilled and performed. Macy v. Railroad, 28 N.W. 249; Greenleaf v. Railroad, 29 Iowa 14; Buzzell v. Mfg. Co., 48 Me. 113; Ford v. Railroad, 110 Mass. 241; Mullan v. Steamship Co., 78 Pa. 25; Railroad v. Jackson, 55 Ill. 492; Harper v. Railroad, 47 Mo. 567; Boothe v. Railroad, 73 N.Y. 38. (2) There was evidence to support the verdict. (a) While the burden of proof is upon the employe to show the negligence of the employer, he is not bound to do more than raise a reasonable presumption of negligence on the part of the employer. Wharton on Neg., sec. 428; Johnson v. Railroad, 26 N.W. 347; Gillman v. Railroad, 10 Allen, 233; Coombs v. Cordage Co., 102 Mass. 596; Huddleston v. Machine Shop, 106 Mass. 282; Laning v. Railroad, 49 N.Y. 521; Railroad v. Sullivan, 63 Ill. 295; Hart v. Bridge Co., 80 N.Y. 622; Hoge v. Railroad, 23 N.W. 14; Mynning v. Railroad, 26 N.W. 514; Fuller v. Jewett, 80 N.Y. 46; Railroad v. Herbert, 116 U.S. 642. (b) If the structure was defectively constructed, out of repair, or insecure, it is for the jury to say whether the defendant, by ordinary care, could have discovered it. Tuttle v. Railroad, 48 Iowa 236; Tierney v. Railroad, 23 N.W. 229. (c) The span of the bridge which went down "was insufficient to bear the weight of the train." Every panel that went down had a pony bent. These bents were not constructed as required in "safe bridge building." The track was moved from the center of the bridge every time the pile driver was used. It caused the bridge to vibrate and weave. (d) The evidence discloses gross negligence in the inspection of the bridge. (e) Under plaintiff's contract of hiring he is not to be regarded as employed in the same general service as hands running the train or working on the bridge. O'Donell v. Railroad, 59 Pa. St. 239; Gillen-water v. Railroad, 5 Ind. 339; Fitzpatrick v. Railroad, 7 Porter (Ind.) 436; 1 Redf. on Railroads, 526. (f) The defendant waived its demurrer to plaintiff's evidence when it proceeded with its evidence and supplied any defect there may have been in plaintiff's case. McCarty v. Railroad, 15 Mo.App. 385; Cadmus v. B. & T. Co., 15 Mo.App. 86. (3) No error was committed by the court below in the admission of evidence.

Black J. Ray, J., absent; Sherwood J., dissents.

OPINION

Black, J.

Defendant appealed from a judgment in a personal damage suit and insists that the evidence does not support the verdict. The facts disclosed are these: In the course of the construction of its road, the defendant built a temporary bridge, or false work, over Grand river, in Chariton county. This bridge was used for the erection of the permanent structure therefrom, and for the passage of construction trains. It had been so used for eleven days before the accident in question. Plaintiff and others, a gang of track-layers, took the evening construction train for their lodging place on the east side of the river, and as the train was passing over the bridge, about a hundred feet of it gave way, the engine and several cars went down, and the plaintiff to save his life jumped from the car, landed in the river, and received the injuries of which he complains. It is not claimed that he was guilty of negligence.

The charge of negligence against defendant is, that the bridge was not of sufficient strength to allow the train to pass over it in safety, and that it was insecure and in an unsafe condition at the time it gave way. Four piles were driven in a line with the current of the river, and on the top of these was placed a sill, some fifteen feet above the water. On this sill were placed four posts sixteen feet high with a cap on top. These bents were seventeen feet apart and extended from shore to shore, a distance of some three hundred feet or more. In that part of the bridge which gave way, a pony bent was constructed on each of the bents before described, consisting of three posts with a cap to receive the stringers upon which the ties rested. There is evidence that the plan of the bridge was the standard plan for permanent wooden bridges where there is no driftwood, and that the timbers and material used were of standard size and of good quality. The evidence also shows that the posts of the pony bents were not placed directly over the posts beneath; that the piles under one bent were far out of a perpendicular position, but this bent was next to the shore had been braced a day or so before the accident, and was not in that part of the bridge which fell; that a pile-driver, built upon trucks and weighing some thirty tons, was operated from the track on the bridge, the use of which caused the bridge to vibrate and throw the track out of line, so that frequent inspections of the bridge were required. One witness says the ties were not spiked to the stringers, but others say every fifth or sixth tie was spiked. The track was constructed in such a way that it could be moved out of line, from time to time, and not...