Gutridge v. Missouri Pac. Ry. Co.

• Decision Date: 19 March 1888
• Citation: 94 Mo. 468,7 S.W. 476
• Parties: GUTRIDGE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

7 S.W. 476

94 Mo. 468

GUTRIDGE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 19, 1888.

1. MASTER AND SERVANT — DEFECTIVE APPLIANCES — EXPERT EVIDENCE.

Plaintiff sued for damages for the death of her husband, a brakeman on defendant's road, who, in the proper discharge of his duties, was descending the ladder at the end of a moving car, when, by the breaking loose of a hand-hold, he was thrown

under the car and killed. Held, that it was not a case for expert evidence; and it was error to admit the testimony of a carpenter, to the effect that, in his opinion, it would have been disclosed, by reasonable inspection, that such hand-hold was not tightly fastened to the top of the car.

2. SAME — DEFECTIVE APPLIANCE — PLEADING.

In a suit brought to recover damages for the death of a brakeman, caused by the breaking of a defective hand-hold, it was not necessary to state in the pleading whether the alleged defect which caused the death was in construction, or arose from want of repair; such defect being pointed out with particularity.

3. RAILROAD COMPANIES — NEGLIGENCE — DUTY TO INSPECT CARS — FOREIGN CARS.

It is the duty of a railroad company to inspect foreign cars received for transportation upon its road, with reference to their safety, just as it is bound to inspect its own.

BRACE, J., dissenting.

Appeal from circuit court, Henry county; JAMES B. GANTT, Judge.

T. J. Portis, (with Thos. G. Portis and Wm. S. Shirk,) for appellant. Fyke & Calvird and J. La Due, for respondent.

BLACK, J.

Plaintiff sued for damages for the death of her husband, E. B. Gutridge, who was a brakeman on that division of the defendant's road from Sedalia to Parsons. Defendant received a freight car belonging to the Pittsburg, Cincinnati & St. Louis Railroad Company, at St. Louis, on the 1st August, 1884, and on that day hauled the same to Chamois, and on the next day to Sedalia, and on the third to Montrose, on the Sedalia & Parsons division. On the 8th of the same month, a train on which Gutridge was a brakeman took the car back to Sedalia. The train before reaching that place, and in starting from the water-tank at Calhoun, broke in two, leaving 8 cars attached and 15 detached from the engine. Gutridge was on the forward portion, and, after it ran some distance, he signaled the engineer to stop. He then got a pin or link, walked on top of the cars to the rear one, being the car in question. This car had a ladder attached to the rear end and a hand-hold at the top, fastened on the top of the car. He attempted to go down the ladder to make the coupling while his division was moving backwards to the detached section, but the hand-hold came loose, and he fell to the track, and was killed by the cars running over him. It was the duty of the deceased to go up and down the ladder while the cars were in motion, and there is no evidence of any negligence on his part. No evidence was offered as to whether the car was or was not inspected at St. Louis, Sedalia, or any other point. Mr. Minish testified: "Picked up the hand-hold. It was a small one; just room for one hand to cleverly fit in it. The flat ends were fastened to the top of the car with screws about two inches long. The screws looked rusty and bad; they looked almost as much like nails as they did like screws; were filled up with rust, and looked as if they had been working loose from the wood. The screws were pulled out of the wood. did not examine top of car." Mead, the conductor, says: "The hand-hold was handed to me. Examined the top of the car. The hand-hold had a foot on each end, with two screws through each foot; not bolts. The screws appeared to be old and rusty. The holes in the wood looked old. That is the only thing I noticed about them." On cross-examination he says the screws remained in the hand-hold; that while it was in place the threads and wood around the screws would not be visible. Mr. Slack, a carpenter, stated that he climbed to the top of the car and examined it only immediately around the hand-hold; that the holes where the screws had been seemed to be larger than the screws, and that a splinter had been raised at one hole, and the wood was decayed. After stating that he was familiar with the manner of fastening iron to wood with screws, he was asked this question: "From appearance of the top of the car there, — the holes and what you saw, — you can state to the jury whether, in your opinion, it could have been disclosed, by reasonable inspection, that that hand-hold was not tightly fastened to the top of that car before it broke loose. Answer. Yes, it would."

1. There are exceptions to the general rule that witnesses must state...