Bradley v. Chicago, M. & St. P. Ry. Co.

Decision Date23 March 1897
CourtMissouri Supreme Court
PartiesBRADLEY 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.

MACFARLANE, J.

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: "From May 5 to June 13, 1892, plaintiff was in defendant's employ, with other laborers, engaged in digging and removing embankments of earth about thirty-five feet in height. In doing this work, defendant used a steam shovel to dig away the base of the embankment, and when that had been done it would cause the top thereof to be blasted off, so as to prevent its falling upon the workmen about the shovel. On June 13, 1892, while plaintiff was working around the shovel, defendant's agents and servants in charge of the work negligently failed to have the top of the embankment blasted down when the base thereof had been dug away by the shovel, as had been done on all other embankments which plaintiff helped to remove; but, instead of blasting the top of the embankment, defendant caused two men to pry the same off with crowbars where the base had been dug away by the steam shovel, when it was impossible, and was so known to defendant, for two men to pry off the top as fast as the shovel removed the earth from the base. On account thereof the embankment became topheavy, and likely to fall upon the men working about the shovel. Defendant's foreman, agents, and servants in charge of the work knew, or by the exercise of ordinary care could have known, of the dangerous and unsafe condition of the embankment, and that it was liable to fall at any time. And while in such unsafe and dangerous condition, defendant's foreman, agents, and servants in charge of the work negligently ordered and permitted the plaintiff to work around the shovel, and while so working the embankment fell upon and injured him." 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: "I was not a judge of banks, and supposed my foreman was. I relied on him telling me when that bank was dangerous." 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) The jury are instructed that it was the duty of the defendant railway company to use every reasonable precaution to avoid exposing the plaintiff to danger, and to use ordinary care and diligence to provide him a safe place to work; and if the jury believe from the evidence that the embankment around which plaintiff was working, as disclosed by the evidence, was allowed to become insecure and dangerous on account of defendant's negligence, and liable to fall upon plaintiff while working around same, and that defendant knew, or by the exercise of reasonable care could have known, of the dangerous and unsafe condition of such embankment; and if the jury believe that any overseer, superintendent, boss, or foreman of the defendant railway company, having power and authority to manage and control plaintiff and the men working around said shovel and said embankment, and to direct their action, ordered or directed plaintiff to do the work he was engaged in doing, and that while he was so engaged said embankment fell upon him, and injured him, then he is entitled to recover in this case, unless the jury further believe from the evidence that the condition of the embankment around which plaintiff was working was such as to threaten such glaring, apparent, and immediate danger that a person of ordinary care and prudence would have refused to have worked around it under the circumstances. (2) The jury are instructed that if the defendant railway company had a gang of men, among whom was plaintiff, digging down the embankment, as disclosed by the evidence, and if said men were under the control and management and subject to the directions of a superintendent or foreman of said defendant railway company, then said superintendent or foreman was the vice principal, and his acts in directing and controlling said men were the acts of the defendant. (3) The jury are instructed that if they find for the plaintiff they will assess his damages in such sum, not exceeding the sum of fifteen thousand dollars, as they may believe from the evidence will fairly compensate him for the injuries he sustained; and in determining such amount the jury will take into consideration the physical pain and mental anguish plaintiff may have suffered, if any, or that he may yet suffer in the future, on account of such injuries."

1. Defendant insists that the court should have directed a verdict for the defendant for several reasons. First,...

To continue reading

Request your trial
168 cases
  • Smith v. Wells, 28495.
    • United States
    • Missouri Supreme Court
    • October 14, 1930
    ... ... (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.
    • United States
    • Missouri Supreme Court
    • July 9, 1935
    ... ... 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
    • United States
    • Missouri Supreme Court
    • September 4, 1930
    ... ... 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
    • United States
    • Missouri Court of Appeals
    • June 19, 1905
    ... ... 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 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT