Chase v. Wabash R. Co.
| Citation | 137 S.W. 999,156 Mo.App. 696 |
| Parties | BERT H. CHASE, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Decision Date | 29 May 1911 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
Judgment affirmed.
J. L Minnis and Sebree, Conrad & Wendorff for appellant.
(1) The evidence on the part of plaintiff is in conflict with physical facts. Zaloutchin v. Met. St. Ry. Co., 127 Mo.App. 584; Spiro v. St. Louis Transit Co., 102 Mo.App. 250; Spohn v. Railroad, 87 Mo. 74; Nicholson v. Cigar Co., 158 Mo. 159; Payne v Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 569; Kelsay v. Railroad, 129 Mo. 362; Oglesby v. Railroad, 177 Mo. 272; Weaver v Railroad, 60 Mo.App. 207. (2) There was no negligence on the part of defendant. Minnier v. Railroad, 167 Mo. 99; Chrismer v. Telephone Co., 194 Mo. 208; Bohn v. Railroad, 106 Mo. 433; Steinhauser v. Spraul, 127 Mo. 562; Blanton v. Dold, 109 Mo. 74; Blundell v. Miller Mfg. Co., 189 Mo. 552. (3) The risk of injury from switch stand was assumed by plaintiff. Jackson v. Railroad, 104 Mo. 457; Hollingsworth v. Biscuit Co., 114 Mo.App. 23. (4) Evidence of no previous accident was admissible. Kappes v. Shoe Co., 116 Mo.App. 167; Rodgers v. Meyerson Ptg. Co., 103 Mo.App. 689; Fuques v. St. Louis, 167 Mo. 645. (5) Consideration of certain cases. Murphy v. Railroad, 115 Mo. 111; Charlton v. Railroad, 200 Mo. 419; Swearingen v. Railroad, 221 Mo. 661; George v. Railroad, 225 Mo. 364. (6) Instructions. Henson v. Stone Co., 131 S.W. 934.
Reed, Yates, Masten & Harvey for respondent.
(1) There can be nothing advanced against defendant's contention that if physical facts are in absolute conflict with the evidence upon which plaintiff relies for recovery, the case must be reversed. The authorities are not, and cannot be helpful in solving this contention, since each case must depend upon its own peculiar facts. By the argument hereafter presented we hope to demonstrate that there are no physical facts in the record of this case which stand in the way of respondent's recovery. (2) Appellant contends that there was no negligence on the part of the defendant. If the switch stand was placed and maintained by the defendant company in such close proximity to the track upon which its trains were operated as to render possible the happening of such an occurrence as was testified to by the plaintiff, then it goes without saying that such construction was a negligent construction. Tewksbury v. Street Railway, 134 S.W. 682, and cases therein cited; Charlton v. Railroad, 200 Mo. 413; George v. Railroad, 225 Mo. 364. (3) There is and can be no question of assumed risk in this case. A servant never assumes any risk arising from the master's negligence. This question has recently been most fully considered by our Supreme Court and the law most definitely fixed. Jewell v. Bolt & Nut Co., 132 S.W. 703. This case so fully considers the law upon this question and is so satisfactory upon the very question here involved that no other cases need be cited. (4) Evidence of no previous accidents at this place was not admissible. Appellant's authorities are not in point. The exact question has been decided by this court in an opinion by Judge Broaddus, in which all concur. Kelley v. The Parker-Washington Co., 107 Mo.App. 495; Gryce v. Railroad, (Ia.) 72 N.W. 781; Railroad v. Vallowe, 115 Ill.App. 626, affirmed 214 Ill. 124; Same case, 73 N.E. 416; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71. (5) Instruction No. 2, given for plaintiff, is correct. It declares that plaintiff did not assume, or contract with reference to any risk or danger arising, or resulting from any negligence on the part of the defendant, if any, in failing to furnish plaintiff with a reasonably safe place in which to work. Negligence is by all lexicographers defined to be the want of ordinary care. Wencker v. Railroad, 169 Mo. 598.
Plaintiff was one of defendant's car inspectors and was injured while at work. He claimed that his injury was caused by defendant's negligence and he brought this action to recover resulting damage. He recovered judgment in the trial court.
The negligence charged was maintaining a switch in the switch yards at the Union Station in Kansas City, Missouri, so near to defendant's track that it was dangerous to servants in getting upon cars in the performance of their duties. The switch here involved, including the light, was about two feet eight inches high. On the night of the 15th of August, 1908, it became plaintiff's duty to light up the cars intended for use. On this occasion he was filling the place of a negro who usually did that particular service. As a car was being brought up to the departing track at the station, plaintiff observed it was dark and attempted to get in to light it. He got upon the step and was opening the vestibule door when the heel of his foot struck the upright switch and he was thrown off and his foot so crushed under the wheel of the car that amputation of a part of it became necessary. There was some testimony to show that a safe and proper distance for a switch stand from the rail was three feet and eight inches, and there was other evidence that this one was only three feet away.
The injury to plaintiff is not questioned. The dispute is as to how it occurred. Defendant says plaintiff was not standing on the step, but was holding to a hand rail of the car and running along by the side when he fell over the switch. Plaintiff has the advantage of the verdict, which is amply supported by the evidence which he detailed in his own behalf. But defendant, while conceding that a mere difference between witnesses is settled by the verdict, contends that the physical facts appearing in the case make plaintiff's testimony impossible; and this is the principal question.
Plaintiff testified that he got upon the lower step with both feet, but that his feet were not entirely on--that the front of his feet, back to and including the instep, were on, leaving the heels sticking over the step, and that as the car passed the switch his heel came in contact with it and he was thereby thrown off. At this point there intervenes measurements of height of the switch and of different parts of it, with and without the light; and its distance from the lower step of the car at its nearest and farthest points. There seems to have been great particularity as to this, getting down to eighths of inches. Defendant had three witnesses on this branch and they do not agree. The same car plaintiff was on was not used in defendant's measurement, though it was of the same class. Furthermore, the car used by defendant was standing, while the one plaintiff fell from was moving and consequently swaying more or less, though of course more at the top than near the bottom.
If the cause of the mishap depended alone on the position of immovable objects, or objects like some machinery which works with rigid and unvarying preciseness, it could very well be determined by minute measurements. But where a portion of the controlling factors forming a cause are not stationary, some of them being the movement of persons, it would, in many instances--this, we think, being one of them--be going too far to say that physical facts have not left a jury with any freedom of thought in determining the cause of the injury. The demurrer to the...
To continue reading
Request your trial