Eliot v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 02 April 1907
• Citation: 102 S.W. 532,204 Mo. 1
• Court: Missouri Supreme Court
• Parties: ELIOT v. KANSAS CITY, FT. S. & M. R. CO.

102 S.W. 532

204 Mo. 1

ELIOT v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri. Division No. 2.

April 2, 1907.

1. APPEAL—ABSTRACTS OF RECORD—MATTERS INCLUDED.

Under Rev. St. 1889, § 2253 [Ann. St. 1906, p. 783, § 813], requiring the filing of an abstract of the entire record, it is not necessary that the abstract contain the certificate of the clerk nor the various matters of the record in full.

2. SAME—ADDITIONAL ABSTRACT.

When a bill of exceptions is signed and filed, the matter therein becomes matter of record, and where the abstract shows that the bill was duly filed, and states what the record shows, it is conclusive, unless the opposite party files a counter abstract showing the contrary.

3. SAME—EFFECT.

Where a party files an additional abstract to supply matters omitted in the original abstract, he waives any other objection to it than as indicated in the additional abstract.

4. MASTER AND SERVANT—DUTY OF MASTER TO FURNISH SUITABLE INSTRUMENTALITIES —PRESUMPTIONS.

In an action against a master for injuries to a servant, the presumption is that the master has discharged his duty towards the servant by providing him with suitable instrumentalities, but, if it be shown that they were defective, the presumption is that the servant had no knowledge of it and was not negligently ignorant of it.

5. SAME.

The mere fact that a servant was injured in the act of throwing a switch lever did not of itself overcome the presumption that the master had discharged its duty towards him to furnish suitable instrumentalities, nor did it amount to proof of a failure by the master to perform its duty.

6. SAME—CONTRIBUTORY NEGLIGENCE.

A switchman in full control of a switch, and with authority to control by signal the movements of engines using it, who allowed an engine to come so close to the switch that he did not have time to complete the act of turning the lever before the engine had passed the switch, and struck his hand which was upon the partly turned lever, was guilty of contributory negligence.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Fannie E. Eliot against the Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. F. Parker and I. P. Dana, for appellant. W. T. Jamison and Walsh & Morrison, for respondent.

BURGESS, J.

Plaintiff, the widow of B. F. Eliot, sues for $5,000 damages for the death of her husband, who on the 27th day of May, 1901, while in the employ of and acting as switchman for defendant, and in the performance of his duties as such, in the yards of defendant in Kansas City, was struck and injured on the back of his hand by one of defendant's engines, from the results of which injury and other "matters and things" set forth in the petition the said B. F. Eliot on the 17th day of July, 1901, died. The trial resulted in a verdict and judgment for $5,000 in favor of the plaintiff. In due time defendant filed motions for a new trial and in arrest, which were overruled, and defendant appealed. The suit was originally instituted against the Kansas City, Ft. Scott v. Memphis Railroad Company, appellant herein, and the St. Louis & San Francisco Railroad Company, but was subsequently dismissed as to the latter.

The petition alleges the incorporation of the defendant, and that on May 27, 1901, Benjamin F. Eliot, the husband of plaintiff, was in the employ of the defendant, and in such employ was acting as a switchman at a point on the tracks of the defendant near Twenty-Fifth street and State Line in Kansas City, Mo.; that, while in the discharge of his duties as such switchman upon said day, plaintiff's husband, while adjusting and operating a switch at said Twenty-Fifth street and State Line, and while pushing or turning over the lever to operate said switch, which was necessary to enable an approaching engine belonging to the defendant to switch upon and run over and upon the proper track, and while said engine was being run, operated, and controlled by the engineer thereof, who was an employé of defendant, his hand while still grasping said switch lever was struck by said engine and thereby severely wounded, lacerated, torn, and bruised at and about a point on the back thereof, immediately above the joint where the index finger is joined to the hand, and thereby the said index finger was almost severed from the said hand. "Plaintiff further states that the said injury to the hand of the said Eliot was caused as aforesaid by the carelessness and negligence of the defendant, the Kansas City, Ft. Scott & Memphis Railroad Company, in so constructing and arranging the said switch lever and the said engine and its attachments that, when operated as aforesaid, they came so close together, as to cause the injury as above stated. Plaintiff states that the said Benjamin F. Eliot had a long and continuous illness caused from the aforesaid injury, extending from the time of the said accident until on or about the 17th day of July, A. D. 1901, from which injury and illness his life was in imminent peril and danger, and as a result of such injury it became necessary to perform a surgical operation upon the said hand in an effort to heal and cure the said injury, and, in order to save his life, and as a necessary incident to the performing of the said operation, the physicians and surgeons in attendance upon him administered to him an anæsthetic, and while under the influence of said anæsthetic, administered for the purpose aforesaid, and before the said operation could be completed, the said Eliot died, his death being caused on account of the matters and things hereinbefore set forth." It was further alleged that the St Louis & San Francisco Railroad Company was liable for the debts of the Kansas City, Ft. Scott & Memphis Railroad Company and judgment was prayed against both defendants in the sum of $5,000. The last-named defendant demurred on the ground that it was not a necessary party to the suit, and that the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court and defendant saved an exception to the ruling.

The answer of defendant consisted of, first, a general denial; second, a general plea of contributory negligence; third, a general plea of assumption of risk. Plaintiff's reply was a general denial of the allegations of the answer.

The only testimony in the case was that introduced by plaintiff, the defendant not offering any, and the only witness who was present at the time and place of the accident was H. P. Wells, foreman on the switch engine which, it is alleged, struck and injured Eliot. Wells testified by deposition, which was read on behalf of plaintiff at the trial. The deceased was an experienced switchman, 45 years of age, and when hurt he was attempting to "throw a switch" in front of an engine which was switching cars, and while so doing his hand in some way was caught between some part of the engine and the switch lever, and thereby lacerated and injured. According to Wells' testimony, he was sitting on the left-hand side of the cab of the engine, going north, at the time Eliot was hurt. The switch stand was on the west side of the tracks. South of the switch there was only one track, but north thereof there were two tracks, with either of which the south track could be connected by properly moving the switch lever; the movement being called "throwing the switch." The westerly track led to the main line, while the easterly track was called the "Milwaukee connection." The switch engine had been employed in the yards and in the vicinity of the said switch, with the same crew, all the forenoon. Immediately before the accident the engine had gone over this switch upon the Milwaukee connection and coupled up to some cars standing thereon, and then backed over the same switch until the engine and cars were south thereof. The engine then started rapidly north, and, when it was close to the switch, the cars were uncoupled, and they proceeded with the impetus given them over the switch and to the west track. It would appear that when the cars, which were moving rapidly, were ahead of the engine about half a car length, or 18 feet, and before the engine had yet reached the switch Eliot attempted to throw the switch between the engine and said cars; the object being to let the engine in on the Milwaukee connection without stopping. At the time he attempted to do this the engine was about six feet south of him, and still moving rapidly. Before the operation of moving the switch handle or lever was completed, and while said lever was pointing in a horizontal direction towards the track, the engine passed, and some projecting attachment on the engine struck the hand of Eliot which had hold of the end of the lever. Eliot held up his bleeding hand, and at a signal from fireman Wells the engine was stopped. The hand was injured on the back; the tendons of the index finger above the knuckle being torn apart. There was a blow-off pipe on the engine just behind the pilot beam, and in a position somewhat lower than the beam. Witness Wells measured the space between the blow-off pipe and the switch lever, when each was opposite the other, and found the space was about an inch, which he said was not sufficient for a man's hand. He was asked if the way Eliot threw the switch was not the usual and ordinary way under such circumstances, and he stated that he had seen it done before, and whenever there was an occasion of that kind. Witness John W. O'Neil, an experienced switchman, testified that the operation of switching cars from one track to another and "throwing the switch" was about the same in all yards. He said that he knew the switch stand in question, having worked in defendant's yards prior to May 27, 1901. On cross-examination he stated there would be room enough to throw the switch although the engine was only six feet away...