Doss v. Missouri, K. & T. R. Co.

• Decision Date: 23 February 1909
• Citation: 116 S.W. 458,135 Mo. App. 643
• Court: Missouri Court of Appeals
• Parties: DOSS v. MISSOURI, K. & T. R. CO.

116 S.W. 458

135 Mo. App. 643

DOSS v. MISSOURI, K. & T. R. CO.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. MASTER AND SERVANT (§ 190)—INJURIES TO SERVANT — FELLOW SERVANTS — SECTION FOREMAN—SECTION HANDS.

A railroad section hand and his foreman are not fellow servants, and the negligence of a section foreman in suddenly stopping a hand car of which he was in charge, whereby a section hand riding thereon was injured, was the negligence of the railroad.

2. MASTER AND SERVANT (§ 213)—INJURIES TO SERVANT — ASSUMPTION OF RISK — SECTION HAND—OPERATION OF HAND CAR.

A railroad section hand assumes the risk of injuries which may result from the ordinary and usual jerks and jars incident to the operation of a hand car with which he undertakes to work.

3. MASTER AND SERVANT (§ 278)—INJURIES TO SERVANT—NEGLIGENCE—SUFFICIENCY OF EVIDENCE.

In an action against a railroad for injuries received by a section hand through the sudden checking of the speed of a hand car on which he was riding whereby he was thrown off, evidence held sufficient to support a finding that defendant's foreman was negligent in checking the speed of the car without warning plaintiff.

4. NEGLIGENCE (§ 59)—PERSONAL INJURIES— PROXIMATE CAUSE.

The true rule in determining what is the proximate cause of an injury is to ascertain whether the injury is the natural and probable consequence of the negligent act; that is, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by a reasonably prudent person in the exercise of ordinary care as likely to result from the act complained of.

5. MASTER AND SERVANT (§ 139)—INJURIES TO SERVANT — NEGLIGENCE — PROXIMATE CAUSE.

Where a hand car was running at a speed of four or five miles an hour, the negligent act of the foreman in charge of it in suddenly and violently, and without warning, checking its speed, whereby plaintiff, a section hand, who was standing on a slight margin of platform, with his back towards the direction in which

the car was going, was thrown to the track and run over and injured, was the proximate cause of the injury.

6. NEGLIGENCE (§ 136)—PERSONAL INJURIES —CONTRIBUTORY NEGLIGENCE.

Unless the situation assumed by plaintiff is one which threatens imminent peril, apart from the subsequent intervening act which produces the injury, plaintiff ought not to be declared guilty of contributory negligence as a matter of law.

7. MASTER AND SERVANT (§ 240)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

Plaintiff, a section hand, while standing on the platform of a hand car, assisting in pumping it, with his back towards the direction in which the car was going, and in a position usually occupied by sectionmen, was thrown therefrom and injured through the sudden and violent checking of the speed of the car by the foreman in charge thereof without warning to plaintiff. Held, that the fact that plaintiff was using one hand only in pumping the car did not render him guilty of contributory negligence; there being nothing to indicate that the position assumed by him was one of imminent peril had the car been managed in the usual manner.

Appeal from Circuit Court, Montgomery County; Jas. D. Barnett, Judge.

Action by William Doss against the Missouri, Kansas & Texas Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. P. B. Jackson, for appellant. John M. Barker, for respondent.

NORTONI, J.

This is a suit for damages alleged to have accrued to the plaintiff as a result of personal injuries received while in defendant's employ as a section hand on its railroad. Plaintiff recovered, and the defendant appeals. The plaintiff had been in the defendant's employ on the section between two and three months prior to the date of his injury. The negligence relied upon for a recovery is an alleged careless act of the defendant's section foreman in applying the brake, without warning, on the car on which the plaintiff and others were riding, in such a manner as to occasion the sudden stopping of the car, whereby plaintiff was precipitated onto the center of the track and the car run upon him. It appears the gang was in two parties, working together on defendant's railroad. At about 5:30 o'clock in the afternoon they ceased their labors, and embarked on two separate hand cars for their homes in the town of Rhineland. There were three men and numerous tools on the first or foremost car. On the second car there were four men and numerous tools, such as shovels, etc. Defendant's section foreman, Koch, and the plaintiff, were on the second car. There appears to have been a custom or rule, with which all the men were familiar, to the effect that, when sectionmen are approaching a sharp curve on the railroad, the hand car should be stopped in order to listen; the noise incident to the operation of a hand car being such as to possibly prevent hearing the sound of an approaching train. Under the circumstance of two hand cars being operated by the same gang, it is the rule for those on the first or foremost car to act as lookout, or, what they term, a flag, for the second. In such case the cars are run about 150 yards distant from each other. Upon approaching a sharp curve in the track, it is the duty of those on the first car to stop and listen, and, in event no danger appears ahead, signal the second car forward. The defendant's railroad passes along and adjacent to the north bank of the Missouri river. There are numerous sharp curves thereon around the protruding bluffs. At the time under consideration the car on which the plaintiff was riding was preceded by the other hand car operated by the three other sectionmen. Having approached a curve at the bluff, the foremost car stopped, and signaled the second to do the same. Those on the foremost car ascertained that the track was clear, and proceeded forward, at the same time signaling those on the car with plaintiff to follow. The second car, or that on which the plaintiff was riding, having stopped on the first signal, immediately proceeded forward in response to the second. When the second car had started forward and attained a speed of between four and six miles an hour, the section foreman, Koch, without a word of warning, placed his foot upon the brake, and either checked the speed of or stopped the car so abruptly as to precipitate the plaintiff into the middle of the track in front of the same. The hand car ran upon him, and inflicted severe and painful injuries. At the time of his being precipitated from the car, plaintiff was standing on the foremost end thereof, assisting in the act of propelling the same. His back was toward the east; that is to say, in the direction the car was moving. The section foreman, Koch, was engaged at the same lever or handle bar as plaintiff, propelling the car also. He, Koch, was standing between the handles of the car and near the brake, facing toward the east. The car was operated by means of raising the handle bar up and forcing it down; or, as the men in their testimony say, by pumping the car. Two other sectionmen were engaged in assisting on the rear handle, and they, too, were facing the direction in which the car was moving. The testimony of plaintiff and one of his colaborers in his behalf tends to prove that the foreman, Koch, without warning, suddenly placed his foot upon the brake. This act either checked the speed of or entirely stopped the car very suddenly, and with such force as to precipitate the plaintiff backwards onto the track. It seems at the time plaintiff was engaged in pumping the car with one hand only, the other swinging at his side, and it may be that his hold upon...