Francis v. Kansas City, St. J. & C. B. R. Co.

• Decision Date: 19 March 1895
• Citation: 30 S.W. 129,127 Mo. 658
• Court: Missouri Supreme Court
• Parties: FRANCIS v. KANSAS CITY, ST. J. & C. B. R. CO.

30 S.W. 129

127 Mo. 658

FRANCIS v. KANSAS CITY, ST. J. & C. B. R. CO.

Supreme Court of Missouri.

March 19, 1895.

ACTION AGAINST RAILROAD COMPANY — INJURY TO SWITCHMAN — CONTRIBUTORY NEGLIGENCE — BOARDING MOVING ENGINE — VIOLATION OF RULES.

1. Railroad switchmen who, in violation of a rule of the company, habitually board moving switch engines from the middle of the track by stepping on the footboard of the engine as it approaches, assume the risks ordinarily incident thereto, but do not assume the danger of injury from incompetency of the engineer. 28 S. W. 842, affirmed.

2. Whether a switchman injured at night while boarding a moving switch engine from the middle of the track, contrary to a rule of the company, was guilty of contributory negligence, is for the jury, where it is shown that the rule was habitually violated with the knowledge of the company, and that deceased had no notice of its existence. 28 S. W. 842, affirmed.

3. Whether an engineer was negligent in sending a switch engine rapidly towards deceased while he was but a few feet in front, intending to step on the footboard, is a question for the jury. 28 S. W. 842, affirmed.

4. The fact that deceased knew that the engineer was incompetent, and had so reported him to the company, is not a bar to a recovery if the danger in working with him was not so obvious that an ordinarily prudent man would refuse to work with him. 28 S. W. 842, affirmed.

5. Where there was evidence that defendant had posted a rule forbidding switchmen and other employes from boarding approaching switch engines from the middle of the track, it was proper to charge that it was defendant's duty to make reasonable rules for the guidance and instruction of its switchmen, and that it was the duty of the switchmen to use due care in acquainting themselves therewith. 28 S. W. 842, affirmed.

6. Defendant cannot complain of an erroneous instruction, given at his request, and in his favor. 28 S. W. 842, affirmed.

7. Evidence that it was usual for employes to get on the footboard of a moving switch engine after the posting of defendant's rule forbidding it, and that defendant's officers knew of such violation of the rule, and failed to reprimand them, is admissible to show that the rule was not in force. 28 S. W. 842, affirmed.

Sherwood and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Jennie Francis against the Kansas City, St. Joseph & Council...