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

• Decision Date: 03 May 1909
• Citation: 136 Mo. App. 705,119 S.W. 32
• Parties: BRADFORD v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

119 S.W. 32

136 Mo. App. 705

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

Kansas City Court of Appeals. Missouri.

May 3, 1909.

Rehearing Denied May 17, 1909.

1. TRIAL (§ 140)—CREDIBILITY OF WITNESSES —QUESTION FOR JURY.

The credibility of a witness, though seriously impugned, is solely for the jury.

2. APPEAL AND ERROR (§ 1002)—REVIEW— QUESTION OF FACT.

Whether plaintiff was injured in the manner testified to by him, it not being inconsistent with natural laws, but depending on whether certain conditions existed, is a question of fact, the finding on which cannot be reviewed.

3. APPEAL AND ERROR (§ 1001)—REVIEW— VERDICT.

A verdict will not be disturbed on appeal unless entirely unsupported by substantial evidence.

4. MASTER AND SERVANT (§ 288) — ASSUMPTION OF RISK—QUESTION FOR JURY.

An employé, who had had no experience with machinery, and who, though doubting his capacity on that account, was set to work by his employer running an engine with the assurance that he could do it after being properly instructed, and while wiping cogs in a dark place with waste had his fingers drawn into them, will not be held as matter of law to have assumed the risk.

5. APPEAL AND ERROR (§ 1064)—REVIEW— HARMLESS ERROR — INSTRUCTIONS — REFERRING TO PLEADINGS FOR ISSUES.

If an instruction be open to the objection of referring the jury to the pleadings for the issues, by the words "unless you further find from the evidence that plaintiff's injuries were caused by his own negligence, as alleged in the defendant's answer," the irregularity should be disregarded, where defendant could not have been prejudiced thereby.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by George A. Bradford against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

W. F. Evans and Sebree, Conrad & Wendorff, for appellant. Fred A. Boxley and Conkling & Rea, for respondent.

BROADDUS, P. J.

This is a suit for damages sustained by the plaintiff and alleged to have been the result of defendant's negligence. The injury occurred on the 27th day of August, 1905. The plaintiff was in the employ of the defendant on the section work of its railroad at Vale, a station in Jackson county. After having moved to Vale preparatory to assuming his work, he was informed that he would, in addition to his usual work, be required to run a gasoline engine. He raised some objection to running the engine on the ground of his inexperience, but was informed that a man would be furnished to instruct him in that work. He received such instruction and had operated the engine only a few times before he received the injury complained of. He seeks to recover on the ground that defendant failed to afford him a reasonably safe place in which to perform the service required of him. He was injured while in the act of wiping and oiling said engine. The engine was located at the bottom of a concrete room sunken to the depth of about 15 feet. It was lighted at night by a lamp, and by day by a skylight window about three feet by five feet in dimensions and located in the south side of the roof and by light from the open door of the room. Plaintiff testified that on the day in question, when he attempted to wipe and oil the cogwheel with some waste material used for the purpose, the material caught in the wheel, which jerked his hand into the cogs and ground off his fingers. He testified that it was so dark that he did not see clear enough to realize his closeness to the cogwheel, and that this cogwheel was on the north side of the engine. The plaintiff was corroborated as to the conditions of light by some other witnesses. The evidence tended to show that the skylight had caught cinders and dust, which had the effect of darkening the room to some extent. The evidence on part of defendant, by a large number of witnesses, tended to show that the light was sufficient, and that, if plaintiff had used reasonable precaution, he could have avoided the injury. The judgment was for the plaintiff, from which defendant appealed.

The defendant's contention is that plaintiff's injury was the result of his own negligence. It is argued: First, that there was sufficient light to have enabled plaintiff, had he exercised ordinary care, to have performed the work without any risk of danger. To support this theory, the evidence is thoroughly gone...