Harrington v. Wabash R. Co.

• Decision Date: 01 February 1904
• Parties: PAT HARRINGTON, Respondent, v. WABASH RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

78 S.W. 662

104 Mo.App. 663

PAT HARRINGTON, Respondent, v. WABASH RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1904

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

Judgment reversed.

Geo. S Grover, Frank P. Sebree and H. C. McDougal for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence and in giving plaintiff's instructions 1 and 3. Neither allegation nor proof warranted plaintiff's first instruction. Plaintiff's opportunity to know of the risk and danger is as strong as actual knowledge thereof, and bars a recovery. 4 Am. and Eng. Ency. of Law, 29-30; Beach Contrib. Neg., sec. 139; Greenleaf v. Railway, 29 Iowa 46; Perigo v. Railway, 52 Iowa 276; Cummings v. Collins, 61 Mo. 520; Keenan v Kavenaugh, 62 Mo. 232; Siela v. Railway, 82 Mo. 430; Roddy v. Railway, 104 Mo. 231, 250-1; Haley v. Jump, etc., Co. (Wis.), 51 N.W. 321; Carpenter v. Railway, 39 F. 315; Railway v. Herbert, 116 U.S. 642. (2) He can not close his eyes to such danger; and the same degree of ordinary prudence rests upon him as rests upon the master. Wormell v. Railway (Me.), 31 A. and E. Cas. 272, 276; Railway v. Mahoney, 4 Ill.App. 265, and cas. cit.; 2 Thomp., Neg., 1008; Bogenschutz v. Smith, 84 Ky. 330, 338; authorities below cited. (3) Plaintiff's injury was the result of his contributory negligence. This court should review "the whole evidence no matter by whom offered." Klokenbrink v. Railway, 172 Mo. 678, 683; see also authorities hereinafter cited. (4) Plaintiff's injury resulted from one of the risks of his employment and that risk he assumed. Holmes v. Brandenbaugh, 172 Mo. 53; Haviland v. Railway, 172 Mo. 106, 112; Holloran v. Iron Co., 133 Mo. 470; Nugent v. Milling Co., 131 Mo. 241; Bohn v. Railway, 106 Mo. 429, 434; Fugler v. Booth, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 541; Marshall v. Hay Press Co., 69 Mo.App. 256; Cunningham v. Journal Co., 95 Mo.App. 541; Judge Seymour D. Thompson in 56 Cent. Law Jour., 323, and cas. cit., notes; Beckam v. Brewing Co., 98 Mo.App. 555; S. C., 72 S.W. 710. (5) Even if it had been safer, or less dangerous, to transfer the cylinders on the transfer table than to carry them across the pit, that would be no evidence of negligence for the reason that the master is under no obligation to furnish to the servant the safest, or least dangerous, manner, appliance, machinery, or the like, in the conduct and management of his business. Muirhead v. Railway, 19 Mo.App. 634; Conway v. Railway, 24 Mo.App. 235; Cathorn v. Cudahy P. Co., 73 S.W. 279; Smith v. Railway, 69 Mo. 37; Bradley v. Railway, 138 Mo. 293; Minnier v. Railway, 167 Mo. 99; Holmes v. Brandenbaugh, 172 Mo. 53.

Hollis & Fidler for respondent.

(1) This cause was properly submitted to the jury and the verdict and judgment thereon fully supported by the evidence. Halliburton v. Railroad, 58 Mo.App. 27; Kane v. Falk Co., 93 Mo.App. 209; Monahan v. Coal Co., 58 Mo.App. 68; Beard v. Car Co., 72 Mo.App. 583; Devore v. Railway, 86 Mo.App. 429; Reed v. Railroad, 94 Mo.App. 371; Foster v. Railway, 115 Mo. 165; Huhn v. Railway, 92 Mo. 440. (2) The court in such case will not interfere with the province of the jury and will affirm the judgment, when the jury are properly instructed. Black v. Railway, 172 Mo. 177; Minnier v. Railroad, 167 Mo. 99; Union Mill Co. v. Bruihl, 51 Mo. 144; Moore v. Pieper, 51 Mo. 157; Covey v. Railway, 86 Mo. 635; Smith v. Railway, 119 Mo. 246; Franke v. St. Louis, 110 Mo. 516; State ex rel. v. Hope, 121 Mo. 41; Church v. Railroad, 119 Mo. 214; Lynch v. Railway, 112 Mo. 420; Gratiot v. Railroad, 116 Mo. 450. (3) Negligence consists in doing something which a reasonably prudent man would not have done under the circumstances, or in failing to do something which a reasonably prudent man under the circumstances would have done. McMahon v. Pacific Express Co., 132 Mo. 641. There is no absolute rule as to negligence to cover all cases.

OPINION

SMITH, P. J.

Action to recover damages for personal injuries. The plaintiff in his petition amongst other things alleged, that the defendant operated machine and car shops at Moberly in said State, for the repair of its cars and all parts thereof, including castiron cylinders for placing under its cars for air or steam brakes used on its said cars in the operation of its road, said cylinders being about three to four feet long and weighing two hundred pounds or more. That among said shops so maintained by defendant in the operation of its road was a paint shop, foundry and car shop, situated about 300 feet apart. Between said shops was a pit about seventy feet wide and about fifteen to eighteen inches below the surface of the ground, with railroad tracks laid therein lengthwise and close to each edge of said pit. That defendant had for the purpose of conveying castings and other articles across said pit from one shop to the other a transfer table which was moved up and down said pit by means of a crank, on the track laid therein, to any point where the same was needed. The top of said table was on a level with the surface of the ground on each side of said pit between the said shops, and said articles were transferred on trucks across said table, all of which could be done with reasonable safety in such manner.

Plaintiff was in the employ of defendant working in its said shops as a laborer in the repair of cars and of car trucks for and in the operation of its road. That at the date aforesaid plaintiff, with two other workmen, was ordered by defendant's foreman in charge of said work and over said workmen, to carry some of the aforesaid cylinders from one of said shops to the other, across said pit and tracks laid therein, and was negligently and carelessly ordered to carry the same over on a stick, instead of using the table provided for such purpose. That in obedience to said order of said foreman, plaintiff, with his colaborers, attempted to carry one of said cylinders across said pit, by said colaborers placing a stick under the cylinder, which said cylinder was of cast iron with a very smooth surface on the outside and of a round form. Plaintiff was holding the back end of said cylinder. The cylinder was tapering from one end to the other, the large end being in front and plaintiff holding the rear or smaller end endeavoring to balance said cylinder on said stick, which by great exertion and care he succeeded in doing from one edge of the pit down, into and across said pit and tracks therein, until his said colaborers stepped across the railroad tracks at the far edge of said pit and up out of said pit to the ground level, when, by reason of the raise caused by said colaborers stepping up onto said ground level it became impossible for plaintiff to keep said cylinder on an exact balance on account of said abrupt step-up and said railroad tracks close to said bank, and the unequalled height of said colaborers holding the front end of said cylinder on said stick, and by reason of the smoothness of said stick and cylinder, it rolled, tilted and slipped on said stick and fell back onto plaintiff, greatly injuring him.

The answer contained a general denial to which was added the plea of contributory negligence and the assumption of the risk.

The evidence tended to show that the defendant's car, repair and paint shops were about 200 feet apart and fronted each other north and south and that between them there was what is called a pit in which was operated a transfer table or portable bridge over which cars and heavy materials were transferred from one shop to the other. The pit was about thirteen inches deep and sixty feet wide. On the morning that the plaintiff was hurt there were two cylinders in the car shop which Lang, the foreman of the two shops, wanted removed to the paint shops, and he accordingly ordered Cosby and Mitchell, two of his employees, to do this. The cylinders were truncated cones--churn shaped and about four feet long and twelve inches in diameter at the larger end and nine inches at the smaller. They weighed about 200 pounds each and were a part of the air brake system in use on defendant's railway trains. When Cosby and Mitchell came to remove the cylinders the latter suggested to the foreman that they were rather heavy for two men to carry across the pit and thereupon the foreman told them to go and get plaintiff who was at work in the car shop. Mitchell notified plaintiff to come over and help them which the latter accordingly did. The foreman directed them to use a stick or handspike in carrying the cylinders. A stick was procured which was about six feet long and 2x2 inches, one side of which was quite smooth. The cylinder had a smooth cast-iron outer surface. The stick was put under the cylinder, Cosby taking hold of one end and Mitchell the other. The plaintiff took hold of the rear and smaller end so as to keep it in equilibrio on the stick while being carried. The first cylinder was removed and when the men returned to get the other and had placed the stick under it, the foreman directed that it--the stick--be placed a little further forward so that more of the "heft" would be on the plaintiff in holding up the rear end. When the three men had carried it across the pit and Cosby and Mitchell had stepped upon the level ground the cylinder tilted up the smaller end descending to the sill which is the outer edge of the pit whereby the plaintiff's three fingers were caught and injured. Whether this was caused by the plaintiff slipping or stumbling or by the cylinder turning or slipping on the stick so that plaintiff lost control of his end of it is not clear from the evidence. The plaintiff went down with his end but just how it happened that he did so is somewhat conjectural. The...