Campbell v. Hoosier Stave & Lumber Co.

• Decision Date: 01 February 1910
• Citation: 125 S.W. 845,146 Mo. App. 681
• Parties: CAMPBELL v. HOOSIER STAVE & LUMBER CO.
• Court: Missouri Court of Appeals

125 S.W. 845

146 Mo. App. 681

CAMPBELL v. HOOSIER STAVE & LUMBER CO.

St. Louis Court of Appeals. Missouri.

February 1, 1910.

1. TRIAL (§ 296) — INSTRUCTIONS.

Where, in an action for injuries to a servant by the derailment of a tram car, the court charged that defendant as an employer was only bound to use reasonable and ordinary care, skill, and diligence in procuring suitable and safe ties, cars, rails, and machinery, another instruction with reference to defendant's obligation to keep the track in order was not fatally defective for failure to measure defendant's obligation by the conduct of a person of ordinary prudence under like circumstances.

2. APPEAL AND ERROR (§ 882) — INSTRUCTIONS — DEFINITION OF TERMS — PREJUDICE.

The use of the terms "reasonable care" and "negligence" in instructions requested by plaintiff without defining them, no definition being requested, was not prejudicial to defendant where the law on the issue presented in plaintiff's instruction was explicitly stated in an instruction given at defendant's request.

3. MASTER AND SERVANT (§ 112) — INJURIES TO SERVANT — TRAMROADS — CARE REQUIRED.

A lumber company, operating a tramroad for the transportation of its own logs, is not necessarily bound, for the protection of its operatives, to construct it as thoroughly and carefully as a railroad intended to be a public carrier of freight and passengers for hire.

4. MASTER AND SERVANT (§ 278) — INJURIES TO SERVANT — DEFECTIVE TRAMROAD — EVIDENCE.

In an action for injuries to a servant by the derailment of a tram car, evidence held to warrant a finding that the injury was caused by derailment due to defendant's negligence in failing to keep the track in reasonable repair.

5. MASTER AND SERVANT (§ 262) — INJURIES TO SERVANT — ASSUMED RISK — PLEADING.

Assumed risk is no defense to an action for injuries to a servant where it is not pleaded.

6. MASTER AND SERVANT (§ 288) — INJURIES TO SERVANT — ASSUMED RISK.

Where plaintiff, who was employed to operate a loader in connection with a logging railroad, which was defective and not reasonably safe, was injured by the derailment of a tram car caused by a defect in the track, and it was not part of his duty to travel over the track, he having testified that he had not been over it for more than four months prior to the accident, he did not assume the risk as a matter of law.

7. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

In an action for injuries to a servant by the derailment of a tram car due to a defective track, whether he was negligent in taking a sitting position on the log loader in order to uncouple it from the car at the time he was injured was for the jury.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by G. E. Campbell against the Hoosier Stave & Lumber Company. Judgment. for plaintiff, and defendant appeals. Affirmed.

In an accident on a railway or tramway, this plaintiff had his right leg and foot crushed so badly amputation was necessary about seven inches below the knee. He was at the time in the employ of defendant, which was an incorporated company, operating a large saw and stave mill, and in connection with it four miles of railway track extending into the woods where logs were obtained for the mill. At the immediate time plaintiff's employment was in connection with a train of tram cars used to convey logs to the mill. The railway track was not graded much, if at all, but followed the surface of the ground over which it ran. Testimony goes to prove the rails and ties were about the size and kind commonly used in a railway of that kind, but that the track was in poor condition over portions of it. Here and there the ground was swampy; the rails and ties being submerged under pools of water, and in some places the track floated or swung above the surface of the ground. It was submerged in what some of the witnesses called "the water hole," where the derailment happened. Some of the rails were broken, and the trucks of the "loader" were under water. It was in testimony that "a little bit of weight" would bend the track under the water. Where the wreck took place, two or three rails were broken over a space of the length of 20 rails or less, and, when the train would pass over these broken rails, it would oscillate up and down. The cars about which plaintiff worked composed a log train drawn by an engine. Used in connection with this train was what is called a "loader," and it was on the loader plaintiff was working at the time he was hurt. We understand the loader was a species of car which ran on the track, and was used in some manner to facilitate loading logs on the other cars, though no description of it is given, and for this reason it is difficult to picture in one's mind exactly how the accident occurred. Three loaded cars stood in front of the loader and were moving on the track, when the foreman told plaintiff to uncouple the cars from the loader. Plaintiff sat down on the front end of the loader in order to pull the coupling pin, and the testimony shows it was necessary or proper for him to do this. When he sat down, his legs hung down over the end of the loader. The pin had already worked out or had been drawn out of the coupling, but, while plaintiff was in the posture described, the loaded car in front of the loader left the rails, and it or logs projecting over the end of it crushed against plaintiff's leg before he could get it out of the way. According to the testimony, the car may have left the track from running over a broken rail, or from the rails not being securely spiked to the ties or in consequence of the way the ties were put down; "launched one way and another, giving the rails a chance to spread out," as was said by the man who was foreman of the section at the date of the accident. At the spot the ties had been laid on the surface of the ground without preparing a roadbed for them to rest on. The foreman said his recollection was that broken rails had been worked on and repaired in that place before the accident; but they were repaired immediately after the accident also, and then showed "old breaks" in the rails. This witness said the road was a pretty good tramroad, but, like others, was good in some places and bad in others. Another foreman testified part of the road "was an average tramroad," and sometimes he had enough men to keep it in repair and sometimes had...