Buckalew v. Quincy, O. & K. C. Ry. Co.

• Decision Date: 20 June 1904
• Parties: BUCKALEW v. QUINCY, O. & K. C. RY. CO.
• Court: Missouri Court of Appeals

81 S.W. 1176

107 Mo. App. 575

BUCKALEW v. QUINCY, O. & K. C. RY. CO.

Kansas City Court of Appeals. Missouri.

June 20, 1904.

MASTER AND SERVANT — PERSONAL INJURIES — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — ASSUMPTION OF RISK — EXPERT TESTIMONY — WITNESSES — QUALIFICATION — INSTRUCTIONS — MODIFICATION.

1. In an action by a servant for personal injuries caused by being struck on the hand with a maul by defendant's foreman while, in obedience to orders of the latter, he was holding an angle bar in position during the construction of a switch, evidence held not to show plaintiff guilty of contributory negligence.

2. In an action by a servant for personal injuries caused by being struck on the hand with a maul by defendant's foreman while, in obedience to orders of the latter, he was holding an angle bar in position during the construction of a switch, evidence held not to show that plaintiff had assumed the risk.

3. In an action by a servant for personal injuries caused by being struck on the hand with a maul by defendant's foreman while, in obedience to orders of the latter, he was holding an angle bar in position during the construction of a switch, evidence held to justify submission to the jury of the issue of defendant's negligence.

4. In a suit for injuries received by a servant while assisting in putting in a switch point, the proper method of doing the work was a proper subject for expert testimony.

5. Witnesses employed in the track departments of railroads for a number of years are qualified to testify as experts as to the proper method of putting in a switch point.

6. Exclusion of evidence subsequently admitted is harmless.

7. A requested instruction that the testimony of experts should be received with "great caution" was modified by inserting the words "other evidence in the case" instead of those first quoted. The rest of the instruction stated that the jury were not bound to accept expert testimony, but should apply to it their own knowledge and judgment, and accept only such parts as seemed reasonable and trustworthy, and were at liberty to reject it all if it seemed unreasonable or unworthy of belief. Held, that the modification was not harmful.

8. Defendant was not harmed by the fact that plaintiff, in preparing his instructions, noted on each the volume and page of the statute or report supposed to authorize the instruction, it not appearing that the jury sent for or had any of the books referred to.

Appeal from Circuit Court, Grundy County; P. C. Stepp, Judge.

Action by Alfred Buckalew against the Quincy, Omaha & Kansas City Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. G. Trimble and Hall & Hall, for appellant. Platt Hubbell and Geo. Hubbell, for respondent.

SMITH, P. J.

Action to recover damages for personal injuries. The negligence upon which plaintiff relies for a recovery is specified in the petition in this way, i. e., that while the plaintiff, a common laborer, was at work for defendant under the control of its section boss, he was ordered by said boss to stoop down and take hold of the steel rails near a switch point, and hold them with his hands in and about helping the said boss to adjust an angle bar, which said angle bar was in close proximity to the point and place at which said boss ordered plaintiff to take hold of said rails, and which said angle bar the said boss was then and there violently and rapidly striking with a heavy maul; that, for the performance of this work, the defendant, then and there, carelessly and negligently failed to furnish the plaintiff and its other employés with reasonably safe and suitable tools and appliances for the performance of said task; that plaintiff obeyed said order, and was thereby placed in an unsafe and dangerous place to work; that, while plaintiff was in a stooping position, holding said rails as ordered by said boss, the plaintiff was, without fault or negligence on his part, and by reason of the aforesaid carelessness and negligence of the said boss in giving said order, and so placing plaintiff in an unsafe and dangerous place to work, and by reason of the carelessness and negligence of said boss in handling said metal spike maul, and by reason of defendant's said negligent failure to furnish reasonably safe and suitable tools and appliances, struck on the left hand with said spike maul or sledge by said section boss. The answer was a general denial. At the conclusion of the evidence the defendant interposed a demurrer thereto, which was by the court denied. And this action of the court, it is now contended, was an error which calls for the reversal of the plaintiff's judgment.

The evidence adduced at the trial tended to prove that at the time of the injury the section foreman, Lemley, was replacing a stub switch with a split switch, and was connecting the switch point or switch rail with the lead or track rail by means of an angle bar known as a "continuous joint angle bar." This bar was 22 inches long, and the lower part was bent so as to extend under the base or flange of the rail and from a groove into which the edge of the flange or base of the rail fitted, and when thus adjusted it curved in against the side of the rail so as to be bolted to the two connecting rails. The switch rail was 15 feet long, and at the heel, where the angle bar was being fastened, it was the same size as the other rail to which it was being connected. The rail to which the switch rail was being connected was spiked down, while the switch rail was not; it being necessary for it to be loose, so that the point of it could be moved back and forth in switching from one track to the other. The foreman was engaged in driving the angle bar to its place under and onto the heel of the switch rail, and the end of the connecting rail, with a heavy spike maul, weighing about 10 or 12 pounds, and was standing on the north side of the rails; that being the side on which he was adjusting the angle bar.

The plaintiff himself testified that "my hand, at the time it was hit, was right over the ball of the rail. Hit on the left hand. I was facing north. I had my feet on the outside rail, and my hands by the switch point. By the `switch point' I mean the inside rail. The section foreman told me to sit down. I did sit down. I was pulling that switch rail out in line with the main rail, so we could get on the angle bar. Mr. Lemley was standing right there. He was striking on that end of the angle bar part of the time, and part of the time on that side. He was striking right in between the two rails. My left hand was six to twelve inches from the east end of the angle bar. I don't know just how far it was. He told me to still hold to it. I started to get up, and he says, `Sit down there and hold it out.' I started to get up, for I thought he was through. He struck two licks. The second lick he struck after I sat down there, he hit my hand." Frisby, a witness for plaintiff, testified that, at the time plaintiff was injured, he was trying to pull the switch rail in line with the main rail. His hand was six or eight inches from the east end of the angle bar. The section boss was trying to drive the angle bar up under those rails. Lemley, the defendant's foreman, testified that "the switch point was not spiked down. It was not put in proper place yet. The bridles were not on. The switch and lead rails had not been connected. In order to put the angle bar on, and join the lead rail to the switch rails, the latter would have to be pulled into line with the former, to put the bolts through."

It is made clear by the evidence that, before the new switch rail could be connected with the main rail, it was necessary to put the former in line with the latter. Defendant's foreman knew this. Plaintiff was engaged in removing the bolts from the old switch rail, and it may be inferred that he was ordered to quit that work and take hold of the new switch rail, and move it so that it could be connected with the main rail by the angle bar. If he was not ordered in the first instance to take hold of the switch rail when he did so, the act was approved as soon as it was done. The defendant's foreman not only knew that plaintiff had hold of the rail, but the point where so held. He ordered the plaintiff to sit down, and, after he had obeyed this order, and pulled the switch rail out so that it would join with the main rail, supposing this was all that was required of him, he started to get up, whereupon the foreman ordered him to "sit down and to still hold it out." It will not do to say that plaintiff voluntarily took hold of the switch rail. But even if he did so, defendant's foreman, with full knowledge of that fact, ordered him to continue to hold it out. At the time plaintiff was hurt by the stroke of the foreman's maul, he was at...