George v. St. Louis & S. F. R. Co.

• Decision Date: 02 February 1910
• Citation: 125 S.W. 196,225 Mo. 364
• Parties: GEORGE v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Supreme Court

125 S.W. 196

225 Mo. 364

GEORGE v.ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri.

February 2, 1910.

1. MASTER AND SERVANT (§ 274) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

Where an engineer's action was based on defendant railroad's negligence in operating its trains too close to a building with which plaintiff collided while trying to locate a flat wheel, as he was required to do by defendant's rule, testimony of the conductor of the train that after the accident he ran the engine to the shops and that it was not disabled was proper, as tending to show that to stop the train to examine the wheel at that point was unnecessary.

2. MASTER AND SERVANT (§§ 101, 102) — SAFE PLACE TO WORK — DUTY OF MASTER.

It is the duty of the master to furnish a servant with a reasonably safe place in which to work.

3. MASTER AND SERVANT (§ 274) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

Where defendant railroad's rule provided that buildings, etc., should not be located nearer than six feet from the nearest rail, an engineer, injured through being struck by a building outside the right of way, but within six feet of the rail, had the right to assume that defendant would not construct its road nearer than that distance to a building constructed by any one else, and hence in an action for the injuries the rule was properly admitted in evidence on the issue of contributory negligence.

4. MASTER AND SERVANT (§ 274) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

In a railroad engineer's action against a railroad for injuries through being struck by a building near the track, a time-table, stating that certain named bridges would not clear a man on the side of the car, was admissible on the issue of contributory negligence, since, though literally speaking, the time-table only purported to give warning of dangers caused by bridges, the object thereof was protection, and plaintiff had the right to assume that defendant had discharged his duty in that regard toward him.

5. APPEAL AND ERROR (§ 1170) — HARMLESS ERROR — ADMISSION OF EVIDENCE.

Under Rev. St. 1899, § 865 (Ann. St. 1906, p. 812), providing that the court shall not reverse a judgment except for error affecting the merits in an engineer's action against a railroad for injuries through being struck by a building near the track, the erroneous admission of a time-table issued after the accident, giving warning about the building, was harmless, there being no change in the position of the building since the accident.

6. EVIDENCE (§ 14) — JUDICIAL KNOWLEDGE — JUDGMENT AS TO DISTANCE.

The court takes judicial notice that all men do not possess the same judgment as to distances.

7. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTIONS FOR JURY.

In a railroad engineer's action for injuries through being struck by a building near the track, while plaintiff was on the side of his cab looking for a flat wheel, the question of contributory negligence held, under the evidence, for the jury.

8. MASTER AND SERVANT (§ 238) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — METHOD OF WORK.

The rule that where there are two ways of performing a dangerous duty it is the servant's duty to select the least dangerous one is subject to the exception that, if the conditions are such that the safer way cannot be used, the law permits the selection of the more dangerous one.

9. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTIONS FOR JURY.

Whether plaintiff, an engineer, should have stopped the train or ignored the defect in a flat wheel held for the jury.

10. MASTER AND SERVANT (§ 226) — ASSUMPTION OF RISK — NEGLIGENCE OF MASTER.

A servant never assumes risks occasioned by the carelessness or negligence of the master.

11. MASTER AND SERVANT (§ 226) — INJURIES TO SERVANT — ASSUMPTION OF RISK — NEGLIGENCE OF MASTER.

The rule that a servant, who with knowledge of the dangerous place in which the master requires him to work, remains in the service, waives the defects, and assumes the risk has no application, where the dangerous place results from the negligence of the master.

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

In a railroad engineer's action for injuries through being struck by a building near the track, evidence held to support a finding that defendant was negligent in maintaining its road so near the building, and that in consequence thereof plaintiff was injured.

13. MASTER AND SERVANT (§ 262) — CONTRIBUTORY NEGLIGENCE — ASSUMPTION OF RISK — PLEADING.

Contributory negligence and assumption of risk are separate and distinct defenses, and the former must be pleaded in order to be availing, while the latter need not be.

14. MASTER AND SERVANT (§ 227) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE.

Even where there is no assumption of risk on the part of the servant, he cannot recover for injuries where his negligence contributed to that of the master in producing the injury.

15. MASTER AND SERVANT (§ 217) — INJURIES TO SERVANT — ASSUMPTION OF RISK — KNOWLEDGE OF DANGER.

Though a servant incurs the risks of place or machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonable to suppose that they may be safely used with great skill and care, the mere knowledge of the defects on the servant's part will not defeat a recovery for injuries.

16. NEGLIGENCE (§ 117) — CONTRIBUTORY NEGLIGENCE — PLEADING.

Contributory negligence is an affirmative defense, and, to be availing, ordinarily it must be charged in the answer and established by the evidence.

Graves, J., dissenting.

In Banc.Appeal from Cape Girardeau Court of Common Pleas; Benj.F. Davis, Judge.

Action by Armor George against the St. Louis & San Francisco Railroad Company.Judgment for plaintiff, and defendant appeals.Affirmed.

The plaintiff instituted this suit against the defendant in the Cape Girardeau court of common pleas to recover the sum of $20,000 damages for personal injuries sustained by him through the alleged negligence of the defendant.A trial was had which resulted in a judgment for plaintiff for the sum of $10,000.After unsuccessfully moving the court for a new trial, the defendant duly appealed the cause to this court.As no question is raised as to the sufficiency of the pleadings, which are in the ordinary form, they will be omitted from this statement of the case.Most of the facts of the case are undisputed and are substantially as follows:

The appellant at the time of the injury complained of operated a railroad from the city of St. Louis, south through the village of Commerce, Scott county, Mo., into the state of Arkansas.The road was located in Water street, which runs north and south through said village, and is 60 feet in width.At the northeast corner of Water and New Madrid streets there stood near the street lines a two-story building, known as the "pottery building."This building was erected upon private property some 30 years prior to the date of the injury, and was about 20 feet wide and 40 feet long.In the year 1893 the board of trustees of the village of Commerce duly enacted an ordinance which provides, among other things, the following: "Section 1.That for the purpose of right of way, depot grounds and incline for a river railroad and transfer, the said village of Commerce hereby grants to Louis Houck, and the company he may organize, for the purpose of building a railroad from or near the city of Cape Girardeau, Mo., to Morley, Mo., via the village of Commerce, Mo., the following real estate, rights, and privileges, that is to say: First.The privilege to lay a track of a standard gauge railroad through the center of Water street, from the northern to the southern city limits, with privilege to build a switch east of said main track at or near the Grain Chain Mills and Commerce Grain Elevator, in such manner as not to be nearer than six feet of the east line of Water street between New Madrid and Washington streets."Louis Houck, the grantee of said franchise, began the construction of the railroad therein mentioned in the year 1893, under the name of Houck's Missouri & Arkansas Railroad Company, and completed it in the year 1895.In the year 1902 the road was conveyed to the St. Louis & Gulf Railway Company, and in 1904 the latter conveyed it to the St. Louis, Memphis & Southeastern Railway Company.Shortly afterwards, during the same year, it was sold to the St. Louis & San Francisco Railroad Company, the appellant, which was operating it in January, 1906, when respondent was injured.

The evidence discloses that the railroad track was not located in the center of Water street, as contemplated by the ordinance before mentioned, but east thereof, and at the point where it passes the pottery building the east rail thereof runs within a distance of 48 inches of the line of the west wall of said building.The location of the track had not been changed, as it passed through Commerce from the time of its construction to the date of the injury.James F. Brooks was the civil engineer who had charge of and constructed the railroad in question, and he remained with the road in that capacity through its various transfers, and remained in the employ of appellant until August, 1905.He testified that in locating the road he got just as close to the pottery building as he could; that the reason for locating the road so close to the pottery building was to avoid a ledge of rock about 12 feet thick located in and on the west side of Water street.The depot at Commerce was located about 750 feet south of the pottery building on Water street, and each was plainly visible from the other.On January 11, 1906, the date of the injury, and for some two or three years prior thereto, the respondent had been in the employ of appellant as a passenger locomotive...