Hach v. St. Louis, I. M. & S. R. Co.

• Decision Date: 27 February 1906
• Citation: 117 Mo. App. 11,93 S.W. 825
• Parties: HACH v. ST. LOUIS. I. M. & S. R. CO.
• Court: Missouri Court of Appeals

93 S.W. 825

117 Mo. App. 11

HACH v. ST. LOUIS. I. M. & S. R. CO.

St. Louis Court of Appeals. Missouri.

February 27, 1906.

1. MASTER AND SERVANT — SERVANT'S INJURIES — MASTER'S LIABILITY — RAILROAD TRACKS.

A railroad is not liable for the death of a locomotive engineer owing to a rotten tie, unless the presence of the tie was due to a lack of ordinary care in the way of inspection and repair.

2. SAME—QUESTION FOR JURY.

In an action for the death of a locomotive engineer owing to a rotten tie, the question whether it could have been discovered by proper inspection held one for the jury.

Appeal from Circuit Court, Butler County; Jas. L. Fort, Judge.

Action by Ida Hach against the St. Louis, Iron Mountain & Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin Clardy and L. F. Dinning, for appellant. Wilson Cramer, for respondent.

GOODE, J.

Plaintiff's husband, a locomotive engineer, was killed on February 25, 1904, while in the employ of defendant company. His engine was derailed and toppled over carrying him under it, and crushing him so that he died. The great weight of the evidence goes to show the accident was caused by the breaking of one of the north rails of the railroad track, and that the rail broke because a rotten tie gave way under the weight of the locomotive. This tie was immediately beneath a joint where the ends of two rails came together. As the locomotive ran over the joint, the decayed tie broke, and in consequence the weight of the engine bore down the east end of the westernmost of the two rails which met at the joint and broke it at a point some six feet from the joint. When the tie gave way, the end of the rail was left unsupported, and it bent under the load of the engine so far that it snapped in two. When the front wheel of the engine reached the broken end, the wheel was deflected from the rail and the engine careened over and fell down an embankment. Much testimony was introduced that the roadbed was in bad condition in the vicinity; that the ballast had been washed out by the pouring down of rainwater from a hill on the south side of the track, and that a great many of the ties were rotten. Defendant's foreman in charge of that section swore the roadbed needed working all along, and that he had a force inadequate to keep it in good order. His superior, the roadmaster, gave evidence to the contrary. The negligence charged against defendant was permitting its roadbed to be in an unsafe condition at the place of the accident and failing to replace with good ties the rotten ones beneath the rail that broke under the locomotive. The answer was a general denial of the allegations of the petition, and a plea that the death of deceased was due to his own carelessness; a plea unsupported by the testimony. A perusal of the record cannot fail to impress any one with the conviction that deceased lost his life as a direct result of the bad condition of defendant's roadbed, and that this condition was due to defendant's neglect to provide a sufficient section force to keep the road in repair. It is, therefore, with reluctance that we have yielded to the conviction that prejudicial error occurred in the trial of the cause which requires us to return it for a retrial.

The case was instructed on the theory that defendant was an insurer of the reasonable safety of its roadbed and track, instead of on the theory that it only insured their safety in so far as they could be kept safe by diligence. The first instruction given for plaintiff declared that defendant owed deceased the duty of keeping its track and roadbed in a reasonably safe condition. This charge omitted to state that defendant's duty was to use ordinary care to keep its road in a reasonably safe condition. The second instruction given at plaintiff's request, declared that if her husband was killed by the overturning of his engine, and it was caused to overturn by the breaking of one of the rails of defendant's road, and the jury found that at the time and place of the occurrence the railroad track was out of repair and unsafe, and that some of the ties under the broken rail were decayed and the derailment of the engine was due to such decayed condition of the road, plaintiff was entitled to recover. That instruction omitted to state, as a fact essential to plaintiff's recovery, that the decayed ties and unsafe condition of the road must be ascribable to lack of ordinary care on the part of defendant. These omissions were emphasized by the refusal of an instruction requested by defendant which told the jury, in substance, that if they found the employés of the defendant did not and could not, by careful examination and inspection, detect the unsound and decayed condition of the ties, the verdict should be for defendant. If the instructions for the plaintiff had hypothesized all the facts essential to a recovery, we might not consider the refusal of the instruction just mentioned ground for reversal; inasmuch as there was proof that the section gang was too small to make adequate inspections. Defendant has no cause to complain of the instructions, except for the failure to carry into them as a condition of recovery, that defendant must have been negligent in respect to the condition of its roadbed and ties. The company was charged with the duty to deceased of maintaining its track and roadbed in a reasonably safe condition, so far as that could be done by the exercise of ordinary care. But if the decayed part of the tie which caused the rail to break under the weight of the locomotive was not yet large enough to...