Covey v. Hannibal & St. J. R. Co.

• Decision Date: 06 June 1887
• Parties: CASSIUS C. COVEY, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 170

CASSIUS C. COVEY, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from Macon Circuit Court, HON. ANDREW ELLISON, Judge.

Affirmed.

The case is stated in the opinion.

STRONG & MOSMAN, for the appellant.

I. Plaintiff's allegation of negligence in respect to the length of time the handle had been permitted to remain in the car, and the failure of the defendant to inspect the same was not supported by a scintilla of evidence. Negligence cannot be presumed, but must be proved. Railroad v. Kirkwood, 45 Mich. 56; Brown v. Railroad, 49 Mich. 156; Catron v. Nichols, 81 Mo. 80; Stepp v. Railroad, 85 Mo. 229. The law presumes the master has done his duty. McDermott v. Railroad, 87 Mo. 285.

II. Plaintiff could not recover on this allegation, because his own evidence showed that he was daily engaged on this car that it was his duty to see that his tools, implements, and machinery, were in suitable condition for the service required; and that the nature and condition of the piece of timber shown in evidence " was perfectly obvious to the sense of any man, whether servant or master." He tried his case and attempted to establish defendant's negligence upon this theory. Plaintiff was bound to see that the machinery about and with which he was daily engaged was in proper condition for the service required. Both the law and defendant's regulations required this of him. Ballou v. Railroad, 54 Wis. 257; Railroad v. Eddy, 72 Ill. 138; Railroad v. Jewell, 46 Ill. 99. That it was his duty to see that the handle was in fit condition for the service required. Railroad v. Jewell, 46 Ill. 99; Railroad v. Eddy, 72 Ill. 138; Cummings v. Collins, 61 Mo. 520; Ballou v. Railroad, 54 Wis. 251. That he was bound to see defects in his own immediate department and service. Waldhier v Railroad, 87 Mo. 37; Perego v. Railroad, 52 Ia 276; Mooney v. Lower Vem. Co., 55 Ia. 681; Nolan v. Shickle, 69 Mo. 338-9; Price v. Railraad, 77 Mo. 508; Way v. Railroad, 40 Ia. 343. Where a servant has the same facilities for acquiring information that the master has, he cannot recover. Lumley v. Caswell, 47 Ia. 159; Ballou case, supra; Flannagan v. Railroad, 50 Wis. 462; Thayer v. Railroad, 22 Ind. 29; Cagney v. Railroad, 69 Mo. 416; Spiva v. Railroad, 88 Mo. 73. Where a master has given orders to his servant, which, if observed, will avoid injury from defective machinery, he is exonerated from liability. Shearman & Redf. on Neg., sect. 92; Durgan v. Munson, 9 Allen [Mass.] 396. The evidence shows defendant exercised due care in selecting appliances, and in testing them.

III. There was no charge that the defendant had been guilty of any negligence, omission of duty, or want of due and proper care in selecting the materials from which the handle was made, or in respect to testing or inspecting such handle after it was made. The bare fact is stated that the handle was made and prepared of brittle ash wood, wholly unfit and unsafe for such purposes. As this could occur without fault in the defendant or its servants, and as the law presumes that the master has done his duty, and, in order to state a cause of action on that ground, if one was intended to be stated, the pleader should have alleged that the same occurred by reason of defendant's negligence. Again, there was a total failure of proof to sustain the allegation that the car-handle was made of brittle ash wood, wholly unfit and unsafe for such purposes. The evidence in relation to the condition, nature, and character, of the wood composing the stick shown in evidence, was totally irrelevant, because there was no evidence tending to show that this piece of ash wood was a part of the car-handle which broke with the plaintiff.

IV. The court erred in overruling the motion for a new trial on the ground that the verdict was against the evidence, and the law as declared by the court.

V. It was error to give plaintiff's first instruction, which was based on the ground of negligence in the original preparation of the handle, or negligence in originally furnishing an unsafe handle. There was no such ground of negligence charged in the petition. The plaintiff's third instruction was not the law applicable to the case at bar. It is only in the absence of an opportunity to ascertain defects, that a servant has any right to rely on a presumption. " He directly contributes to his own injury who pays no attention to his own safety, and trusts to the obligations imposed on others." Turner v. Railroad, 74 Mo. 606-7. Said instruction was in direct conflict with defendant's instruction numbered A.

VI. We respectfully urge that there was an entire failure of proof of the charge that the defendant carelessly permitted the handle to be and remain in use without inspection, or that it permitted the handle to remain in use for an unreasonable length of time, which was the only negligence alleged in the petition; that there was neither proof nor charge that the defendant was negligent in furnishing the handle in the first instance, and pray the court to reverse the judgment below, without remanding the cause.

J. L. BERRY, for the respondent.

I. The petition sufficiently alleges the negligence of defendant in furnishing the car with an unfit handle in the first instance. The allegation is that the handle " was made of brittle ash wood, unfit for the use to which it was put," and " that the plaintiff's injuries were caused and brought about and resulted from, the carelessness and negligence of defendant, in failing and neglecting to furnish and provide for plaintiff's use, a safe and suitable hand-car and appliances." Crane v. Railroad, 87 Mo. 588, and authorities cited in opinion; Covey v. Railroad, 86 Mo. 635; Sicla v. Railroad, 82 Mo. 430.

II. On the second proposition the evidence shows that the handle was not safe, nor fit to be used in the car, and that a proper examination for the purpose would have discovered its unfitness. The car with this handle had been in use on the road for some time, and was unfit for use. It was the duty of defendant to see that it was safe, and to keep it safe and suitable for the service, and plaintiff had a right to assume that defendant would do so. Brothers v. Cartter et al., 52 Mo. 374; Railroad v. McDaniels, 107 U.S. 454; Lewis, Adm'r, v. Railroad, 59 Mo. 495; Condon v. Railroad, 78 Mo. 567; Ford v. Railroad, 110 Mass. 240; Cook v. Railroad, 63 Mo. 397; Gibson v. Railroad, 46 Mo. 162; Cook v. Railroad, 24 N.W. 311; Thompson v. Hermann, 3 N.W. 579; Hobbs v. Stauer, 22 N.W. 153; Gravelle v. Railroad, 11 F. 569; Porter v. Railroad, 71 Mo. 66; S. C., 60 Mo. 160; Patterson v. Railrood, 76 Pa.St. 393; Flyn v. Railroad, 78 Mo. 203; Hickman v. Railroad, 22 Mo.App. 344. If defendant could have discovered the defect in the handle by the use of ordinary care, and failed in this respect, and the injury was sustained by reason of the defect, plaintiff should recover. Gibson v. Railroad, 46 Mo. 163; Smith v. Railroad, 69 Mo. 36; Wood on Master and Servant [1 Ed.] p. 688, sect. 329.

III. A servant in the use of appliances furnished by the master, is bound to take notice of those dangerous defects, of which he has knowledge, and which are obvious to his senses, but is not bound to investigate for himself. See authorities above cited. Devlin v. Railroad, 87 Mo. 545, and authorities cited by respondent; Conroy v. Iron Works, 62 Mo. 39; Thorpe v. Railroad, 89 Mo. 650.

IV. Plaintiff was not chargeable with contributory negligence. A servant is not necessarily chargeable with contributory negligence, in remaining in a certain employment, although he may know that the appliances used are defective and insufficient, if the danger or risk is not such that, as a prudent man, he is bound not to assume them, or continue in the service. Thorpe v. Railroad, 89 Mo. 650; 2 S.W. 3; Conroy v. Vulcan Iron Works, 62 Mo. 39.

V. Plaintiff was under the charge of the foreman, Ryan. Ryan was a vice-principal, and knew, and was bound to know, the condition of the hand-car, used by plaintiff, and his negligence was that of the defendant. Covey v. Railroad, 86 Mo. 435; Moore v. Railroad, 85 Mo. 588; McDermott v. Railroad, 87 Mo. 285; Stephens v. Railroad, 86 Mo. 221; Hoke v. Railroad, 88 Mo. 360.

VI. The special findings sustain the verdict. No objections were made to the answers before the jury was discharged, and it is now too late to object. Brick Co. v. Railroad, 21 Mo.App. 648; Bradley v. Bradley, 45 Ind. 72; McElfresh v. Guard, 32 Ind. 409.

VII. The evidence sustains the verdict. There was evidence that the car-handle was originally defective; that it was unfit for use, and dangerous at the time of accident, of which fact plaintiff was ignorant, and which defendant could and should have known, by the use of ordinary care and attention. There was evidence that the stick produced by plaintiff was a fragment of the car-handle that he broke. The plaintiff recognized the piece as a part of it. The place and manner of breaking, and all attending circumstances, indicate that it must be, and defendant's witness, Goff, recognized it as one of his make of handles.

VIII. All the issues were fairly and properly submitted to the jury by the instructions, and as favorably to defendant as it could have expected. The handles used by defendant in its hand-cars at the time of this accident were four feet long and about two inches in diameter; since this accident, they are made three and a half feet long, because " less liable to break by the power exerted on them while working the car." This handle broke the second time plaintiff pulled up with both hands, " about half-way between the highest and lowest stroke, when it snapped." This evidence is...