Briner v. Chicago, B. & Q. R. Co.

• Decision Date: 24 January 1905
• Citation: 85 S.W. 653,109 Mo. App. 493
• Court: Missouri Court of Appeals
• Parties: BRINER v. CHICAGO, B. & Q. R. CO.

85 S.W. 653

109 Mo. App. 493

BRINER v. CHICAGO, B. & Q. R. CO.

St. Louis Court of Appeals. Missouri.

January 24, 1905.

INJURY TO EMPLOYÉ — ASSUMPTION OF RISK — CONTRIBUTORY NEGLIGENCE.

1. On the sides of flat cars used in carrying dirt were forked stakes in which the side boards on the cars were placed while unloading and on the return of the cars to the pit. One of the stakes of the car on which plaintiff worked was without a fork, and the plank rested on the smooth end of the stake. While the train was in motion, plaintiff, to steady himself, placed his hand on such plank, and it slipped, throwing him from the car. Held that, though the primary purpose of the planks and stakes was to keep the dirt on the cars when loaded, they afforded a proper means of steadying the workmen while the train was moving, and plaintiff did not assume the risk of injury in so using the plank.

2. Plaintiff was not guilty of such contributory negligence as to prevent recovery for his injuries by failing to notice that one end of the plank did not rest on the fork of the stake.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action for personal injuries by Alexander H. Briner against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

H. H. Trimble, Palmer Trimble, and I. C. Dempsey, for appellant. Ball & Sparrow and Matson & May, for respondent.

Opinion.

GOODE, J.

This plaintiff was hurt by falling from a flat car in one of the defendant's construction trains. The train was composed of nine flat cars used for hauling dirt. Five of the cars had four loose planks which were placed on their edges along the sides of the car to prevent the dirt from escaping. The cars had standards on either side about three feet high, with forked tops. When dirt was to be unloaded, the boards were raised into the forks of the standards, and they then extended from one fork to the other, and so remained until the car was reloaded with dirt. There were four standards on each side of a car, one near each end and the other two between. The planks were about 12 inches wide and 16 feet long. The forks were 12 inches deep. On December 4, 1903, plaintiff worked on a car equipped with standards and planks of the kind above described. The next day he began to work on the same car, but later in the day was ordered by the foreman to work on another car next to the one he had first worked on. The train was loaded with dirt that morning, hauled to the place where the dirt was needed, and there unloaded, the retaining planks being raised and laid in the forks during the unloading of the car. The car on which the plaintiff last worked had standards of the ordinary kind, with forks at the top, except one standard at one corner, which had no fork; hence one end of one of the planks rested on the top of that standard, a flat surface four inches square, instead of in a fork. The plaintiff was ignorant of this fact, having never worked on that car before, nor observed that this particular standard was unlike the others in having no fork. After the train was unloaded, it started back to the spot whence dirt was taken, running at a speed of about 25 miles an hour. The day was chilly, and the plaintiff stood with his back to the wind and to the forkless standard. While the train was in motion, the plaintiff, in order to steady himself, put his hand against...