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

• Decision Date: 07 May 1906
• Citation: 118 Mo. App. 449,94 S.W. 315
• Parties: BROWNING v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

94 S.W. 315

118 Mo. App. 449

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

Kansas City Court of Appeals. Missouri.

May 7, 1906.

1. MASTER AND SERVANT — INJURIES TO SERVANT —NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a servant of a railroad, injured while standing in front of, and holding an iron bar used for tightening nuts on angle irons, by the section boss placing his weight on the bar, whereby it slipped from a nut and injured plaintiff. Held, that the questions whether the section boss was guilty of negligence in so placing his weight on the bar, and in failing to remove his weight from it, when it slipped from the nut, were for the jury.

2. SAME—CONTRIBUTORY NEGLIGENCE.

The fact that plaintiff had assumed a wrong position with reference to the bar did not amount to contributory negligence if his act in that particular did not directly contribute to the injury.

3. SAME—INSTRUCTIONS.

Where, in an action for injuries to a servant, it did not appear in what method defendant was carrying on the work in question, except that which would be usual in such cases, or that it was by reason of the method pursued that plaintiff received the injury, a general instruction imposing the duty on defendant to use ordinary care to prevent injuries to its servants and to use ordinary care for the safety of those engaged in its service in prescribing the method of doing the work should not have been given.

4. TRIAL—INSTRUCTIONS—APPLICABILITY TO PLEADINGS.

Where, in an action for injuries to a servant, the petition alleged negligence in ordering plaintiff to adjust a defective bolt on an angle bar on defendant's railroad track, and negligence on the part of the section boss in placing his weight on a bar being held by plaintiff, an instruction as to the bolt hole being too large for the bolt, was erroneous, as a departure from the petition.

5. WITNESSES—IMPEACHING WITNESS—INCONSISTENT STATEMENTS—EVIDENCE OF GOOD CHARACTER.

Where defendant introduced evidence to show that plaintiff had made contradictory statements with reference to material facts in the case, it was proper to permit plaintiff to give evidence as to his good character and reputation for truth.

Appeal from Circuit Court, Mercer County; Geo. W. Wannamaker, Judge.

Action by Warren Browning against the Chicago, Rock Island & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

M. A. Low and Orton & Orton, for appellant. Platt Hubbell & George Hubbell, for respondent.

BROADDUS, P. J.

This is a suit for damages claimed as the result of an injury to the plaintiff caused by the negligence of defendant, while in its employ.

The facts were that on the 15th day of May, 1905, while the plaintiff with other employés of defendant under a section boss were engaged in repairing defendant's railroad tracks, he was injured while tightening up the bolts that fastened together angle bars with the ends of the rails between them. These bolts became loose as the result of jar caused by the constant passing of trains over the rails. At the time plaintiff and a fellow workman by the name of Kooken had placed a bolt where one was missing. This bolt had been in use before and the threads on the end of it had become somewhat worn and battered. The angle bar is applied at each side at the joints where the ends of the rails come together. They are bolted at each end of each rail by two bolts through the rails. The hole through one of these bars is made oblong and the bolt to fit this kind of a hole is made with flattened sides, so that it will not turn in its place. It was shown that the oblong hole in the angle bar was also worn defective; and that it was by reason of this defect, combined with the defect in the bolt, that the bolt was caused to turn when the wrench was applied to the nut on the bolt for the purpose of tightening the angle bar. In order to keep the bolt from turning while his fellow laborer, a man by the name of Kooken, was using a wrench upon the nut of the bolt to tighten the angle bar, the plaintiff was pressing with his weight upon the head of the bolt by using what is known as a claw bar. This claw bar is made of iron or steel, is 57 inches in length, and 2 inches in diameter. On one end it had a claw like a hammer with a spread of 2 inches. At the other end it was flattened. Being unable to tighten the bolt by means of pressure upon its head by the use of the claw bar, Kooken proposed to plaintiff to cut out the bolt and put in another. The defendant's section boss, named Overton, who was about 50 feet away, and who seemed to know what the trouble was, spoke up and directed the two to try again and he would come and help them. The plaintiff at the time was standing in front of the bar holding it, the claw end of which was up and the flat end on the bolt. While in this position, Overton came to their assistance, and threw his weight on the bar, which slipped from the head of the bolt when Kooken applied the wrench to the nut, and it went down, striking plaintiff in the abdomen injuring him. There was no suggestion by Overton to plaintiff to change his position from in front to the side of the claw bar, as was the customary position in that kind of work. In fact, Overton's action was sudden, and gave plaintiff but little or no time for reflection. And there is nothing in the record that goes to show in what manner Overton, the boss, would act when he tendered his assistance. And there was nothing in the evidence to show that plaintiff's position was ordinarily one of danger. On the contrary, he stated that it had the advantage of giving him greater power for pressure on the bolt.

The grounds of negligence alleged, upon which plaintiff seeks to recover, are as follows: That "said section boss, while the plaintiff was under his direction and control, negligently ordered the plaintiff together with another employé of defendant, plaintiff's colaborer, to assist the said foreman, or boss, adjust, tighten, and secure a defective bolt in an angle bar on said track at the point where the rails of the track meet, or join to form a continuous line. Said bolt was then and there defective, in that it was crooked, too short, rusty, old, and threads worn out, and was too small to be used in said place for said purpose. Said section boss failed to inspect and examine said bolt and angle bar. Defendant's section boss then and there negligently attempted to adjust and secure said angle bar with said...