Eudy v. Federal Lead Co.

• Decision Date: 06 April 1920
• Docket Number: No. 15748.,15748.
• Citation: 220 S.W. 504
• Parties: EUDY v. FEDERAL LEAD CO.
• Court: Missouri Court of Appeals

220 S.W. 504

EUDY v. FEDERAL LEAD CO.

No. 15748.

St. Louis Court of Appeals. Missouri.

April 6, 1920.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by A. S. Eudy against the Federal Lead Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Jerry B. Burks, of Farmington, and Parkhurst Sleeth, of Flat River, for appellant.

W. E. Coffer, of Farmington, for respondent.

BIGGS, C.

A personal injury case arising out of the relation of master and servant.

From a judgment for plaintiff for $700, defendant appeals, specifying, among other alleged errors, that the trial court should have sustained its demurrer to the evidence.

The negligence alleged is: First, defective switch; second, excessive speed of the train in charge of defendant's motorman; and, lastly, that the defendant failed to provide plaintiff with a reasonably safe place to work.

Plaintiff was employed in defendant's mine as a switchman or what is termed a "spragger" on its underground motor train. The cars on this train are small affairs, being about four feet long by three feet high by four feet wide, and are propelled by means of an electric motor in charge of a motorman. The cars, about 10 in number, were used to haul rock and mineral from the headings in the mine to the bottom of the shaft, where the material was hoisted to the surface. After the cars were unloaded at the shaft, they were then backed down to the heading for another load. At such time it was plaintiff's duty to go down the track, which was electrically lighted, about 100 or 120 feet to a switch and throw the switch so as to cause the cars as they backed down to pass in and upon the proper track. The switch stand was on the left side of the track as the cars were backed towards the mine, and it was plaintiff's duty, after throwing the switch, to cross over the track and board the motorcar from the right side as it slowed up for him in passing.

On the occasion of plaintiff's injuries and after the cars were unloaded, he went down the track towards the switch and signaled the motorman to back the train down. When plaintiff arrived at the switch, he threw the switch lever, but it failed to close the switch, that is, the switch did not "line up," so plaintiff crossed over to the other side of the track and grabbed a rock and struck the rail several times and forced it over in line so the cars would run over the proper track.. The cars, according to plaintiffs statement, were coming too fast, and he did not have much time, but succeeded in his task and jumped back from the track and avoided being struck by the cars, except for the fact that in jumping he landed on a large rock about' the size of a bucket and which was about three feet back from the track, which rolled under him and caused him to fall forward against the cars and receive his injuries.

Plaintiff testified that, when he threw the switch lever and noticed that the switch was sprung and would not line up, he did not have time to signal the motorman to stop the cars, as the cars were coming too fast, and the motorman could not have stopped if he had tried; and that in that situation by being quick he could jump over and hit the switch point with a rock and force it into line. He testifies: "I knew if I didn't we would have a wreck and somebody get hurt or killed." The evidence plainly establishes the fact that, unless the cars were stopped when the switch failed to line up, the cars would leave the track at the switch.

It further appeared from plaintiff's testimony that this switch at different times prior to the occasion of his injuries had failed to work, and that the switch was a spring switch, and sometimes the spring would catch, which would cause the point of the rail to fail to line up; that he had notified the shift boss of the condition of the switch; but that nothing was done by the defendant, except that the railroaders were sent down to clean away rocks about the switch. While it is true that the switch had worked all right the day before plaintiff was injured and on the day of his injuries up until 2 o'clock, it appeared that it was only on occasions that the spring in the switch would catch and cause the switch to fail to line up.

Taking plaintiff's evidence, whether contradicted or not, as true, and allowing to him every inference springing reasonably from the proof, we think the testimony sufficient to warrant the court in putting the case to the jury on the allegation of negligence as to the defective switch. And under the facts of the case the defective switch could be said to have been the proximate cause of plaintiff's injuries. Buckner v. Stock Yards Horse & Mule Co., 221 Mo. 700, 120 S. W. 766; Daneschocky v. Sieble, 195 Mo. App. 470, 193 S. W. 966.

Defendant contends that under the evidence its peremptory instruction to find for the defendant should have been given by the court, for the reason that plaintiff was guilty of contributory negligence as a matter of law in voluntarily and unnecessarily assuming a known place of danger. We do not agree with this contention, as we think under the facts and circumstances the question of plaintiff's...