Bradley v. Chicago, M. & St. P. Ry. Co.
Decision Date | 23 March 1897 |
Court | Missouri Supreme Court |
Parties | BRADLEY v. CHICAGO, M. & ST. P. RY. CO. |
1. Plaintiff was employed in removing earth from a bank with a steam shovel. The method of work required removal of the earth from the base, and defendant had been in the habit of lessening the danger from falling earth by blasting or prying down the top, but the bank had been left undermined and bulging at the top for several hours. Held, that plaintiff did not assume all the risks of injury from falling dirt, but only such as were incident to the work as conducted.
2. Whether defendant used reasonable care to keep the place to which plaintiff was assigned as safe as the nature of the work permitted was for the jury.
3. Though plaintiff knew that the top overhung, and that earth had often fallen at places where the laborers were not required to work, he was not chargeable, as matter of law, with contributory negligence.
4. An instruction that it was the duty of defendant to use ordinary care to provide plaintiff a safe place to work was too broad, in view of the fact that the work plaintiff was employed to do caused the premises to become dangerous.
5. The error was harmless, however, where the jury were told in the same connection just what omissions by defendant would constitute a neglect to provide a safe place under the circumstances.
6. It was error to charge, at plaintiff's request, that plaintiff was guilty of contributory negligence in failing to go from under the bank only unless its condition threatened "glaring, apparent, and immediate danger," — the proper test of plaintiff's conduct being what a reasonably prudent man would have done.
7. A foreman in charge of a gang of men operating a steam shovel is a vice principal.
Appeal from circuit court, Clay county; E. J. Broaddus, Judge.
Action by Augustine P. Bradley against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Claude Hardwicke, H. H. Field, and Frank Hagerman, for appellant. J. M. Sandusky, W. K. Amick, and R. A. Brown, for respondent.
An action to recover damages for personal injuries sustained by plaintiff through the alleged negligence of defendant for whom he was working as a laborer. A jury trial resulted in a verdict and judgment for plaintiff for $8,000. From the judgment, defendant appealed.
The petition charges substantially that: The defendant's answer consisted of a general denial, and pleas of contributory negligence, assumption of risk, and negligence of fellow servants. The evidence on the trial shows that defendant operated a railway through Jackson and Clay counties. In May and June, 1892, it was engaged, by means of a steam shovel, in removing earth from an embankment along its road in Clay county, loading the earth upon cars, and carrying it over the road to Jackson county, for the purpose of making a fill. The embankment from which the earth was being taken was about 30 feet high. Plaintiff and a number of other laborers were employed in this work under the superintendence of a foreman. The railroad ran east and west through a deep cut with an embankment on each side. The appliances for removing the earth and loading it upon the cars consisted of a crane about 12 feet long with a large steel shovel at the end, operated by steam power. The shovel, when operated, swung in a circle; the earth was scooped out of the embankment, and the shovel of earth was swung round to the car, and unloaded upon it. The shovel could not be raised higher than 12 feet, so the earth was taken from the bottom of the embankment, thereby undermining it. Some of the laborers worked the shovel at the base of the embankment and others worked on top of the embankment, blasting, or prodding with crowbars, the earth down when undermined by the shovel. This was all done under the direction of the foreman. The work, for a time, was done on the north side of the railroad, and the overhanging bank was blasted down. Three or four days before the accident the shovel had been removed to the south side, where no blasting was done, but the overhanging bank was prodded down by crowbars. Plaintiff had been engaged at this work five or six weeks before his injury. His position was at the base of the embankment about the shovel, assisting in moving and raising it, and keeping the ground level, and free of obstructions. The evidence tended to prove that at the time of the accident the shovel had cut into the base of the embankment until there was a bulge in the earth above, and that this condition had remained without change for three or four hours, and that plaintiff's duties required him to work adjacent to this place. Plaintiff admitted that he saw the hanging condition or bulge in the bank, but in explanation of continuing to work there he said: He admitted that "the dirt fell off occasionally, and slipped down." Plaintiff was working in his usual position, when the overhanging bank gave way and fell upon him, causing very serious injuries. At the time of the accident the foreman was, and for 30 or 40 minutes previously had been, absent, having gone, as was his custom, with a load of dirt. The evidence tended to prove that earth frequently fell of its own weight, and that the foreman had frequently warned plaintiff and other men of the danger, and cautioned them to look out for themselves.
At the close of plaintiff's evidence, and again at the close of all the evidence, defendant asked and the court refused to direct the jury to find for defendant. At the request of plaintiff, the court gave these instructions to the jury:
1. Defendant insists that the court should have directed a verdict for the defendant for several reasons. First,...
To continue reading
Request your trial-
Smith v. Wells, 28495.
... ... (a) It is not objectionable as constituting a comment on the evidence. Irons v. Ry. Express Co., 300 S.W. 283; Ward v. Railroad, 311 Mo. 92; Bradley v. Railway Co., 138 Mo. 293; Garard v. Coal & Coke Co., 207 Mo. 242; Hutson v. Stair Co., 296 S.W. 218. (b) It did not assume that the automobile in ... ...
-
Kelso v. Ross Construction Co.
... ... 430; McDonald v. Metal Co., 236 S.W. 418, 209 Mo. App. 23; Highfill v. Independence, 189 S.W. 801; Stone v. Ry. Co., 293 S.W. 367; Bradley v. Ry. Co., 138 Mo. 293, 39 S.W. 763; Meehan v. Ry. Co., 114 Mo. App. 396, 90 S.W. 102; Anderson v. Granite Co., 178 S.W. 737; Britt v. Crebo, 199 ... Shufeldt v. Smith, 40 S.W. 887; Quinn v. Am. Bankers Ins. Co., 165 S.W. 823; Pittman v. Chicago-Joplin Lead & Zine Co., 87 S.W. 11; Aubertine v. Feinberg, 258 S.W. 46; Leckie v. Bennett, 141 S.W. 706; McPike v. Kardell, 213 S.W. 904; Brown & ... ...
-
Smith v. Bridge Company
... ... Bradley v. Ry. Co., 138 Mo. 293; Garard v. Coal & Coke Co., 207 Mo. 242, 259; Smith v. Fordyce, 190 Mo. 1, 12; Stobile v. McMahan, 196 Mo. App. 93; Crader v ... Louis-Southwestern Railway Company, and the Chicago" & Eastern Illinois Railway Company. At the close of plaintiff's case he dismissed as to all the defendants except the appellant ... \xC2" ... ...
-
Zeigenmeyer v. Goetz Lime & Cement Company
... ... Mo. 79, 29 S.W. 998; Epperson v. Cable Co., 155 Mo ... 346, 50 S.W. 795, 55 S.W. 1050; Bunt v. Mining Co., ... 138 U.S. 485; Bradley v. Railway, 138 Mo. 293, 39 ... S.W. 763; Sullivan v. Mfg. Co., 113 Mass. 396 ... Jas ... Booth and John W. Booth for ... ...