Cagney v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1879
• Citation: 69 Mo. 416
• Parties: CAGNEY v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

69 Mo. 416

CAGNEY

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

Geo. W. Easley for appellant.

1. Appellant's duty did not require it to adopt the guard or fender. Its duty was measured by reasonable care, which is such care as reasonably prudent men use under like circumstances. Stack v. Patterson, 6 Phila. (Pa.) 225; Railroad Co. v. Elliott, 1 Cold. (Tenn.) 612; Railroad Co. v. Flanigan, 77 Ill. 365. The master is not bound to change his machinery in order to apply every new invention, or pretended or even actual improvement; and a servant who consents to operate the machinery already provided, knowing its defects, assumes all the risks incident to its use. Wood on Master & Servant, p. 693, § 332; Wonder v. R. R. Co., 32 Md. 411; Riley v. Baxendate, 6 Hurl. & Nor. 446; Railroad Co. v. Gildersleeve, 33 Mich. 133; DeGraff v. R. R. Co., 3 T. & C. (N. Y.) 255; Wharton on Neg., (2 Ed.) § 213; East Tenn., & c., Ry. Co. v. Hodgens, 2 Leg. Rep. (N. S.) 6; 15 Am. Ry. Rep. 174.

2. The respondent having entered the service of appellant with knowledge that the machine was without guard or fender, and without any promise or inducement to lead him to believe that such guard or fender would be supplied, cannot recover, if the accident happened for want of such guard or fender. Hayden v. Smithville Manf. Co., 29 Conn. 548; McGlynn v. Brodie, 31 Cal. 376; Huddleston v. Lowell Machine Shops, 106 Mass. 282; Combs v. New Bedford Cordage Co., 102 Mass. 585; Railroad Co. v. Thomas, 51 Miss. 637; Sullivan v. India Manf. Co., 113 Mass. 398; Kroyn v. R. R. Co., 32 Iowa 361; Muldowney v. R. R. Co., 36 Iowa 465; Railroad Co. v. Barber, 5 Ohio St. 541; Davis v. R. R. Co., 20 Mich. 105; Buzzell v. Laconia Co., 48 Me. 113; Owen v. R. R. Co., 1 Lans. 108; Railroad Co. v. Love, 10 Ind. 556; Thayer v. R. R. Co., 22 Ind. 30; Stone v. Oregon Manf. Co., 4 Oregon 52; Frazier v. R. R. Co.,38 Pa. St. 111; Perry v. Marsh, 25 Ala. 667; Jones v. Yeager, 2 Dill. 67; Gibson v. Erie Ry. Co., 63 N. Y. 449; Toledo, &c., Ry. Co. v. Eddy, 72 Ill. 138; St. Louis, &c., Ry. Co. v. Britz, 72 Ill. 257; Dillon v. R. R. Co., 3 Dill. 324; Ladd v. R. R. Co., 119 Mass. 412; Pierce's Am. R. R. Law, p. 297; 1 Add. on Torts, (Wood's Ed.) § 564; Shearman & Redf. on Neg., § 94; Devitt v. Pacific R. R. Co., 50 Mo. 305; Hulett v. R. R. Co., 67 Mo. 239; Dale v. R. R. Co., 63 Mo. 455; Assop v. Yates, 2 Hurl. & Nor. 768; Dyner v. Leach, 26 L. J. 221; s. c., 40 Eng. L. & E. 491; Senior v. Ward, 102 Eng. C. L. 385; Griffiths v. Gidlow, 3 Hurl. & Nor. 648; Watling v. Oastler, Law Rep. 6 Exch. 73; Patterson v. Wallace, 28 Eng. L. & E. 48; Skip v. Eastern Counties R. R. Co., 24 Eng. L. & E. 396; Seymore v. Maddox, 16 Q. B. 316.

Tichenor & Warner for respondent.

Plaintiff entered the service of defendant not knowing the defects in the machinery used by him. He knew there was no fender or guard, but he did not know that the absence of the same was a defect, as he did not know there was such protection for persons working with such machinery, (a stronger case than Cayzer v. Taylor, 10 Gray 274). When he, a green hand and known to be such by defendant, requested of defendant to be set to work upon said machinery, he had “a right to presume on the master's compliance with the obligations implied by the contract between them,” ( Dale v. St. Louis, Kansas City & Northern Ry. Co., 63 Mo. 459,) and that his employer would adopt suitable instruments and means with which to carry on its business. Gibson v. Pacific R. R. Co., 46 Mo. 169. Plaintiff was right in presuming that his master had exercised ordinary care and diligence in protecting him from injury, and also in selecting the agent from which it might arise. Buzzell v. Laconia Manf. Co., 48 Me. 116; Ryan v. Fowler, 24 N. Y. 410; Noyes v. Smith, 28 Vt. 64; Patterson v. Wallace, 18 E. C. L. 50; Connolly v. Poillon, 41 Barb. 369. True the machinery was of the most dangerous kind, but true it is also the more dangerous the machine the greater the diligence called for on the part of the master. Cayzer v. Taylor, 10 Gray 280; Jones v. Yeager, 2 Dill. 67.

Lay & Belch and Edwin Silver also for respondent.

Railroads should adopt such appliances as are best adapted to secure the safety of their employees. Greenleaf v. R. R. Co., 29 Iowa 14; Cooper v. R. R. Co., 44 Iowa 134; Hegeman v. R. R. Co., 16 Barb. 353, affirmed in 2 Kern. 19; Ford v. R. R. Co., 2 Foster & Fin. 730; Caldwell v. Steamboat Co., 47 N. Y. 282; Costello v. R. R. Co., 65 Barb. 92; Smith v. R. R. Co., 19 N. Y. 127; Steinweg v. R. R. Co., 43 N. Y. 123.

NAPTON, J.

This suit was brought in February, 1876. The ground of action stated in the petition is, that the plaintiff was employed in defendant's car shops at Hannibal; that he was ordered by the foreman to get out door head circles on a shaping machine; that it was no part of his duty to do work on this shaping machine; that the defendant knowingly, carelessly and negligently furnished him with a machine and pattern both of which were imperfect and dangerous; that the machine was without a fender or guard, and the pattern was single when it ought to have been double; and, consequently, that plaintiff, while carefully and unaware of the danger, was working out door head circles, he was, through this disregard of duty on the part of defendant, wounded and bruised on his left hand to such an extent as rendered necessary the amputation of the first three fingers; to his damage $3,000.

As to the facts in this case there is no conflict in the evidence. It appears that the plaintiff had been working in the shop of defendant for six years, mostly as a sawyer on a circular saw, but by reason of the discharge of a good many workmen, he was engaged by Mr. Shed, the superintendent, to work in the shop, generally, at the wages he had been before receiving, and at his own request was allowed by Mr. Davis, the foreman, to work on this shaping machine, with the use of which he was desirous of becoming familiar. Mr. Davis gave him all the instructions he could, advised him that it was a dangerous machine and required great care, and did the most difficult jobs or it himself. The machine was without a guard; but the testimony of all the railroad officials who had superintended or worked in such shops was that they were not used any where in this State; nor was there any proof to show that they were used elsewhere, although they had been tried at Moberly, and in the shops of the Kansas Pacific, in the State of Kansas, and been discarded or disused. In regard to the use of a single or double former, the evidence was clear that the latter was safer, when the work admitted of its use at all, as was the case on the piece the plaintiff was engaged on when hurt; but it was equally clear that the job upon which plaintiff was engaged could be safely done on a single former. The former, in this case, was handed to plaintiff by Mr. Corrigan, who was superintendent of the shop or cabinet in which such tools were made. It had been used by plaintiff on exactly such jobs as he was engaged in when he was hurt; and the job left unfinished by plaintiff in consequence of his hurt, was finished on a single former. After the accident, which disabled plaintiff for several weeks, during which his name was not stricken from the pay-roll of employees, he returned to work on the same machine, and continued to work on it eighteen months, and until a month or so before this suit was brought.

Two grounds were relied on by plaintiff for holding the defendant liable. One was that the machine upon which plaintiff was put to work was without a fender or guard. The other was that a single former was furnished him, instead of a double one.

The instructions to the jury on these points, or rather on the first point alone, were as follows: 1. “The jury are instructed that, while it is true that the defendant was not required to adopt every possible improvement in its machinery, yet it was bound to keep sufficient and safe machinery, and to adopt suitable instruments for its servants who worked upon the same, and if defendant could have provided for these by the use of ordinary care and foresight, and at a reasonable cost, then, if it failed to do so, it was guilty of a breach of duty and is liable for the consequences; and in this case if you believe from the evidence that plaintiff, while in the employ of defendant, lost the first three fingers of his left hand by means of a shaping machine furnished by defendant, and that said machine did not have a fender or guard, and that it was unsafe and defective by reason thereof, and that defendant knew thereof, or might have known thereof by the exercise of reasonable care and diligence, and that defendant might have procured said guard or fender at small expense, then defendant is liable to plaintiff for said injury, provided you believe he received the same because of said machine not having such fender or guard; providing you believe that the plaintiff did not know at the time he was injured that there was such a thing as a fender or guard to that kind of a machine. 2. Even if the jury should believe from the evidence that the plaintiff was guilty of negligence or carelessness which contributed to the injury, yet if they further believe from the evidence that the defendant might have avoided said injury by the use of ordinary care, caution and foresight in furnishing plaintiff with safe machinery and instrumentalities upon which to perform the work on which he was engaged, and that such want of care, caution and foresight was the direct or proximate cause of said injury, then the jury will find for the plaintiff.”

When the first instruction is examined, in connecfion with the testimony on which it was based, or ought to have been based, the objections to it are apparent. There was no testimony to show...