Cannon v. South Dak. Cent. Ry. Co.

• Decision Date: 25 June 1912
• Citation: 29 S.D. 433,137 N.W. 347
• Parties: SAM CANNON, by Ali Hamway, his guardian, Plaintiff and respondent, v. SOUTH DAKOTA CENTRAL RAILWAY COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

29 S.D. 433, 137 N.W. 347 (1912)

SAM CANNON, by Ali Hamway, his guardian Plaintiff and respondent v SOUTH DAKOTA CENTRAL RAILWAY COMPANY,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Joe Kirby

Attorney for Appellant.

Charles P. Bates, Riemer & Loffer, Perrett F. Gault

Attorneys for Respondent.

Opinion filed June 25, 1912

CORSON, J.

This is an appeal by the defendant from a judgment entered in favor of the plaintiff and from the order denying a new trial. The action was instituted by the plaintiff to recover damages for injuries sustained by him while performing the duties of switchman on the defendant's railroad. It is alleged in the complaint: That the plaintiff is a Syrian of the age of 19 years.

"That on the 21st day of July, 1910, and several months prior thereto, the plaintiff herein was in the employ of the said defendant ... as a common laborer in and about its roundhouse and machine shop and the yard in connection therewith at the city of Sioux falls, S. D. ... That the plaintiff was, by the terms of his employment, under the immediate command, direction, and control, and subject to the orders, of one Charles Swan, who was the superintendent of the motive power of said South Dakota Central Railway Company, and who had the general charge of the said roundhouse, machine shop, and yard, and also of the engines and cars of defendant, and all switching of cars to be done in and about said yard. That on or about the 216t day of July, 1910, the said Charles Swan ordered and commanded the plaintiff herein to accompany the engineer in charge of defendant's engine No. 2, and assist in the switching of cars in defendant's said yard. That in order to obey his said command, and do as directed by said Swan, it was necessary for this plaintiff to act both as a switchman and brakeman, and the plaintiff then and there objected to the said command and order, on the ground that he was not employed to do that kind of work. ...

"That thereupon the plaintiff did accompany said engineer and assist in said switching as directed by said Swan. That the said engine was in charge of an engineer at said time, but there was no fireman, switchman, or brakeman with the said engine. That on said 21st day of July, 1910, and while the plaintiff was performing the work in said yard that he had been ordered to perform by the said Swan, as aforesaid, and in the course of performing said work, it became necessary for the plaintiff to climb onto the tender attached to said engine No. 2 while the same was in motion, and lie was directed by the engineer in charge of said engine so to do, and, while so attempting to climb onto the said tender, the left foot of plaintiff, through no fault of his, was caught under one of the wheels attached to said tender, and was cut, crushed, and injured to such an extent as to render it wholly useless and permanently crippled.

That the plaintiff herein was not employed by the defendant company either as a brakeman or as a switchman, or to assist in switching cars, and that on said 21st day of July, 1910, when the said Swan ordered and commanded the plaintiff to accompany said engine and assist in switching cars, as aforesaid, the plaintiff was inexperienced in that line of work, and did not understand the work, or the danger incident to the performance of the same, of which fact the defendant and its said superintendent had full knowledge; and that it was the duty of the defendant to instruct the plaintiff as to the proper manner of performing said work, and to warn the said plaintiff of the danger incident to the performance of the same; but that the defendant negligently ordered and commanded the plaintiff to perform said work without giving him any warning or instructions, and without any explanation of the danger incident thereto, and which might result therefrom to an unskilled workman.

"That the said defendant negligently failed to furnish the plaintiff a reasonably safe place to perform, and reasonably safe appliances wherewith to perform, the said work which the said defendant, through its superintendent, ordered and commanded the plaintiff to perform as aforesaid, in that the said defendant knowingly and willfully failed and omitted to have the said engine and tender properly fitted with appliances as a switch engine. That the handhold attached to said tender was placed so high that plaintiff was obliged to jump in order to catch hold of the same, and that said tender was not provided with any proper stirrup, step, or footboard or running board attached to said tender. That solely by reason of defendant's negligence, as aforesaid, the left foot of said plaintiff was seriously and permanently injured, and his body otherwise bruised and injured. ... All to plaintiff's damage in the sum of $6,170 ... "

--for which he demanded judgment. The answer is a general denial.

It is disclosed by the evidence that the plaintiff was employed by the defendant as an ordinary laborer in and about the roundhouse and had worked as such for some weeks before the accident; that, the regular switchman having resigned his position, the plaintiff was requested to assist the engineer in switching; that he performed these duties until the time he was injured, going out with the switch engine sometimes two or three times a. day and some days not performing the duties of switchman. On the 21st day of July, while performing such duties as switchman, he received the injury complained of, and he describes the manner in which it occurred as follows:

"I turned one switch and tried to jump on the water tank of the engine just as I saw everybody, and just as I had done before, jumped on. I caught hold of the handhold of the water tank of the engine with my right hand. I kept my right foot on top of the oil box and my left foot on top of the brake beam. When the engine came back over the frog, the wheels jerked, the top tipped over a little, and my foot, on top of the oil box, slipped off. ... And my foot on top of the brake beam slipped off, and the wheels caught my foot and cut my toes right off."

It further appears that the plaintiff was born in Syria, and came to this country between 2 and 3 years before the accident, and that he was not quite 19 years of age; that prior to his being directed to assist in the switching he had never had any experience in that kind of employment, and was directed to assist the engineer in the switching by reason of the fact that the regular switchman had left the employ of the company. Evidence was introduced on the part of the plaintiff, and admitted over the objections of the defendant, showing that switch engines were usually supplied with a footboard both in front of the engine and at the rear of the tender or water tank, on which the switchman could stand with safety while the switch engine was in motion.

It is contended by the respondent, in support of the verdict and judgment, that

"it is the defendant's duty to furnish appliances reasonably safe and suitable for the purpose for which used. The engine in question was defective in equipment."

The plaintiff claims that, in not furnishing plaintiff a reasonably safe place and reasonably safe appliances with which to perform the duties assigned to him, the defendant was negligent, inasmuch as there was no footboard or step attached to the engine or tender, and that said engine was not, therefore, properly equipped for switching purposes. It is further contended by the respondent, in support of the judgment of the court below, that

"it is the master's duty to warn and instruct an ignorant, youthful and inexperienced servant, when employed in a dangerous occupation, and in the absence of such instruction the servant cannot be charged with assumption of the risk." It is contended by the appellant that, as the plaintiff had been for a year or more employed on and about railroads and was familiar with the methods of switching and with the engine and tender used in switching in this case, he assumed the risk, and, notwithstanding he was a minor and had been in the employ of the defendant as a common laborer in the yards of the defendant, he had sufficient knowledge of the business of switching to know and appreciate the danger of climbing on the tender as shown by his evidence, and that he not only assumed the risk attendant upon the service, but was guilty of contributory negligence in attempting to climb upon the tender while in motion in the manner described. It is also contended by the appellant that the court erred in admitting evidence tending to prove that switch engines usually contained footboards, steps, or stirrups, both in front of the engine and in the rear of the tender, on which a switchman can safely stand while the engine is in motion, and that for the error in admitting this evidence the judgment of the court below should be reversed. The appellant further contends that the court erred in refusing to give to the jury a number of instructions requested by the defendant, which instructions will be more fully referred to hereafter in this opinion.

It will thus be seen that the plaintiff bases his right to recover upon the ground that the switch engine and tender were not properly equipped with safety appliances by way of footboards, stirrup, or step; and that plaintiff being ignorant of the business of switching, the defendant failed through its officers to warn him of the danger incurred and to instruct him as to the manner in which he should perform the duties imposed upon him; and that the defendant bases its right to a reversal upon the ground that the plaintiff had assumed the risks attendant upon the performance of his duties as switchman, and had such knowledge of the duties as not to require special instructions as to the same from the master.

On the trial Peter Yeager,...