O'Flanagan v. Missouri Pacific Railway Company

• Decision Date: 28 June 1910
• Citation: 129 S.W. 1019,145 Mo.App. 276
• Parties: FRANK O'FLANAGAN, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

129 S.W. 1019

145 Mo.App. 276

FRANK O'FLANAGAN, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 28, 1910

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED CONDITIONALLY.

Elijah Robinson and Harris Robinson for appellant.

(1) If the handhold on the car in question was defective, it was a latent defect which could not have been discovered by an ordinary inspection. Goodrich v. Railroad, 152 Mo 231; Clardy v. Railroad, 73 Mo. 578. (2) In the absence of any evidence on this subject, it will not be presumed that the car had been in possession of defendant a sufficient length of time to raise a presumption of negligence, because of failure of defendant's employees to discover a defect in the handhold. It devolves upon plaintiff in every case to introduce evidence establishing or tending to establish, facts which are necessary to entitle him to recover. Juries are not permitted to arrive at verdicts by mere guess work or conjecture. Railway v Shirtle, 97 Pa. St. 450; Peffer v. Railroad, 98 Mo.App. 291; Zurfluh v. Railroad, 46 Mo.App. 636; Peck v. Railroad, 31 Mo.App. 123; Moore v. Railroad, 28 Mo.App. 622; Long v. Moon, 107 Mo. 338; Avery v. Fitzgerald, 94 Mo. 207; Jackson v. Hardin, 83 Mo. 175; Bank v. Bank, 10 Wall. 639; Commissioner v. Clark, 94 U.S. 284; Powell v. Railroad, 76 Mo. 80. White on Personal Injuries, sec. 238. (3) Under the circumstances shown by the evidence in this case plaintiff assumed the risk of injury that might result from working with the car in question. Railroad v. Hennessey, 96 F. 713.

John M. Cleary for respondent.

(1) The defect was such as could have been discovered by a proper inspection. Martin v. Railroad, 142 F. 650; Railway v. Allen, 114 F. 177; Fellow v. Bullard, 94 F. 781. (2) Defendant was not bound to accept a defective foreign car and it owed its employees the same duties of inspection and repair with regard thereto as with regard to one of its own cars. Gutridge v. Railroad, 94 Mo. 468; Railway v. Valerius, 56 Ind. 511; Railroad v. Williams, 95 Ky. 199; Gottlieb v. Railroad, 100 N.Y. 462; Goodrich v. Railroad, 116 N.Y. 398; Reynolds v. Railroad, 64 Vt. 24 A. 134; Railroad v. Reagan, 96 Tenn. 128, 33 S.W. 1050; Railroad v. Mackey, 157 U.S. 72; Fellow v. Bullard, 94 F. 781. (3) Plaintiff did not assume the risk of defendant's negligence in failing to repair the handhold in the yard as was customary. Zellars v. Water & L. Co., 92 Mo.App. 107; Dupuy v. Railroad, 110 Mo.App. 110; Buscoe v. Railroad, 130 Mo.App. 513; Cothron v. Cudahy Packing Co., 98 Mo.App. 343; George v. Railroad, 125 S.W. 196; Brady v. Railroad, 206 Mo. 528 l. c.; Charlton v. Railroad, 200 Mo. 433; Curtis v. McNair, 173 Mo. 270; McMurray v. Railroad, 125 S.W. 751.

OPINION

JOHNSON, J.

This action is prosecuted by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the master. The appeal was taken by defendant from a judgment of five thousand dollars.

Plaintiff was employed by defendant as a switchman in the "east bottom yards" at Kansas City. At the time of his injury, the crew of which he was a member was engaged in switching three defective freight cars to the repair track. Plaintiff states he did not know that these particular cars were defective, but each had "bad order" cards tacked on its sides. He climbed to the top of the second car from the engine to loosen the brakes if he found them set and went from that car to the one in front. After doing his work there he started to descend from the top of that car on the ladder provided for that purpose. This ladder consisted of an iron stirrup extending down some fifteen inches from the bottom of the car and iron handholds running up the side of the car and ending in a "grab iron" attached to the top of the roof some four or five inches from the edge. The attachment was by means of a lag bolt or screw at each end of the grab iron. The screws were inserted into the wooden roof. The ends of the rod were curved in and flanged to cover and conceal from view the surface of the wood surrounding the screws.

As plaintiff was descending, the screw at one end of the grab iron pulled out, causing him to fall to the ground, a distance of some fifteen feet. The evidence of plaintiff tends to show that the screw pulled out on account of the rottenness of the wood surrounding it. The evidence does not show that the defect would have been open to detection by visual examination of the place. It does not appear how long the car, which belonged to a foreign road, had been in possession of defendant, but it does appear that the three cars were "tagged" with bad order cards by defendant and were being sent to the repair track for necessary repairs. There is evidence to the effect that it was the custom of defendant known to its employees to designate in a special way defects in the attachments of handholds. The inspector would draw with chalk on the wood near the defective place a rude arrow pointed towards the defect and would write "Bad order, Lookout" or some similar warning in order that a switchman using the ladder might have conspicuous notice of the defect. No such warning was given in the present instance.

Counsel for defendant contend that the trial court should have sustained the demurrer to the evidence on the ground that there was no evidence tending to show negligence on the part of the defendant and say, first, that "if the handhold on the car in question was defective, it was a latent defect which could not have been discovered by an ordinary inspection." Citing Goodrich v. Railway, 152 Mo. 222, 53 S.W. 917, where it is held that to charge the master with liability "the defect must be of such a character as to cause an ordinarily prudent person to apprehend difficulty and danger from its existence and the defendant must have had actual knowledge of it for a time long enough to enable it, reasonably, to make repairs, or the defect must have existed for such a length of time that by the exercise of reasonable diligence the defendant could have ascertained it and repaired it."

Though this was a foreign car and the evidence does not show when it came under the control of defendant, the inference that defendant had been in possession of it long enough to know it was defective is conclusively established by the undisputed facts that defendant had caused the car to be inspected; had discovered that it was in a defective condition, had marked it as defective, and had ordered it to the repair track for repairs. Since defendant had actual notice of the condition of the car, it is immaterial whether or not the evidence would sufficiently disclose an issue of constructive notice. The material question on this branch of the case is whether the evidence will support a reasonable conclusion that defendant knew or by proper inspection should have known of the existence of the particular defect that caused the injury. There is no evidence that the inspection made by defendant revealed the decayed condition of the wood around the screw, but we think the evidence of plaintiff does tend to show that the defect should have been discovered had reasonable care been observed in the inspection. True, the surface of the wood immediately around the screw was covered by the flanged end of the rod and this might have obscured the defect to an ordinary visual inspection, but we hold that under all the circumstances disclosed, the question of negligence in the inspection appears as one of fact for the jury to solve. The reasons for this ruling are clearly stated in the following excerpt from the opinion of the Supreme Court in Gutridge v. Railway, 105 Mo. l. c. 520, 16 S.W. 943.

"The argument is made that the inspector was required to use his eyes only in the examination of the handhold, and if he could not see the defect by looking, then defendant's duty was performed, and we are asked to declare that the law required him to do no more. We cannot formulate any rule of law fixing definitely the standard of ordinary care. Every attempt to do it has resulted in failure. What is ordinary care in one case, might be the grossest negligence in another. A mere glance at one handhold might indicate to an ordinary observer that it was safe, while, on the other hand, a glance might discover its defectiveness, and again the conditions might be such that ordinary prudence...