Haworth v. Kansas City Southern Ry. Co.

• Citation: 68 S.W. 111,94 Mo. App. 215
• Parties: HAWORTH v. KANSAS CITY SOUTHERN RY. CO.
• Decision Date: 29 April 1902
• Court: Court of Appeal of Missouri (US)

68 S.W. 111

94 Mo. App. 215

HAWORTH v. KANSAS CITY SOUTHERN RY. CO.

Court of Appeals of St. Louis, Missouri.

April 29, 1902.

MASTER AND SERVANT — SECTION MAN — INJURIES — FALL FROM HAND CAR — NEGLIGENCE — RATE OF SPEED — OVERCROWDING — FOREMAN'S CONDUCT — EVIDENCE — ASSUMPTION OF RISK — FELLOW SERVANT — WITNESSES — COMPETENCY — PHYSICIAN — INSTRUCTIONS — DAMAGES.

1. In an action by a section hand for injuries sustained by being thrown from a hand car, plaintiff testified that the car was running at the rate of 15 miles an hour. Other evidence showed that its speed was from 8 to 12 miles an hour, and a witness for defendant stated that its speed did not exceed 6 miles. The usual rate of speed was shown to be from 8 to 10 miles an hour. The foreman of the section crew was on the car, and directed the men to pump up in order to escape a gravel train. The car was on a steep downgrade. Held, that the evidence supported a finding that the car was run at a dangerous rate of speed.

2. Eleven men were on the car, and two switch joints were loaded on. The car's platform was 4½ feet wide, with 12 or 16 inches on either side of the levers. There was a foot of space between the levers and ends of the car, and the men had to stand at the sides, instead of the front, of the handle bars. Four men were on the front and four on the rear of the car, and two on one side and one on the other. Plaintiff testified that he could not hold the handle bars for want of room. Defendant did not deny that the car was crowded, but claimed that it only had on the usual number of men. Held, that the question of overcrowding the car was for the jury.

3. The law of this state having been settled that the section hand did not assume the risk as a matter of law in riding on the crowded car, the court, in absence of proof to the contrary, will assume that the law of the foreign state, the place of the accident, is the same; and therefore the question of the servant's assumption of risk was properly submitted to the jury.

4. In an action by a section hand for injuries sustained by being thrown from a hand car, the complaint alleged that defendant's foreman of the crew, who was on the car, failed to give the customary signal to stop, or, if given, that it was not given at the customary time, and plaintiff's testimony tended to show that the foreman usually gave the signal to stop from three to four rail-lengths before reaching the stopping point, but gave no signal in this instance. The foreman testified that he gave the signal when within one and a half or two rail-lengths from the intended stopping place. The servant in charge of the brake, when within 40 feet from stopping place, threw his weight on it, and stopped the car's speed so suddenly that plaintiff was thrown off. Held, that the evidence warranted a finding that the accident was due to the failure of the foreman to give the signal to stop at the customary place, before reaching the stopping point.

5. Under St. Ark. 1893, § 6248, which provides that all persons engaged in the service of a railway corporation, who are intrusted with the "authority of superintendence, control, or command" of others in the service of the corporation, are vice principals, a foreman of a section gang, with power to employ and discharge men, and to control them in the performance of their duty, is a vice principal, rendering the corporation liable for an accident due to his negligence.

6. Whether the failure of a foreman in charge of a section crew to give the customary signal to stop the car on approaching the place to stop, when he had previously stated to the crew where to stop, was negligence, was a question for the jury.

7. A section foreman, engaged with the section crew in operating a hand car, is not a fellow servant with the men, but a vice principal, rendering the railway company liable for an injury to one of them through his negligence.

8. A section man of four months' standing is competent to testify as to the speed of a hand car on which he was riding.

9. In an action by a section man for injuries, a physician called by defendant cannot testify, over plaintiff's objection, as to what he learned of plaintiff's condition while professionally treating him; Rev. St. 1899, § 4659, providing that a physician shall be incompetent to testify concerning information acquired from a patient while professionally attending him.

10. In an action by a section hand for injuries sustained by being thrown from a hand car by reason of its being suddenly checked, the evidence showed that it was checked by a fellow servant, and that the section foreman failed to give the usual signal to stop at the customary distance from the stopping place. There was evidence that such signal was given when the car had nearly approached to the stopping place. Held, that it was not error to refuse a peremptory instruction that the foreman was free from negligence, especially where the court charged that plaintiff could not recover if the injury was caused solely by the negligence of the fellow servant in stopping the car.

11. In an action for personal injuries by a section man working for stipulated wages, an instruction authorizing the jury to find substantial damages, not to exceed $300, for loss of time, was erroneous, in the absence of any evidence as to the value of his time, the wages of such men not being so uniform or so generally known as to dispense with the necessity of such evidence.

Appeal from circuit court, Newton county; Henry C. Pepper, Judge.

Action by W. T. Haworth against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Modified.

Cyrus Crane and O. L. Cravens, for appellant. White & Clay and J. G. Park, for respondent.

GOODE, J.

Haworth, the plaintiff, was hurt by being precipitated headlong from a hand car which was running on the line of the defendant's railway, and instituted this action to recover damages for the injuries sustained. He was a member of a gang of workmen about 35 in number, under the superintendency of James Dyson, whose business it was to ballast and repair the railroad track. Dyson called out his men one morning at the station of Decatur, Ark., and had 11 of them, including the plaintiff and himself, get on a hand car to go to a station named "Gravett." The hand car encountered a gravel train about a mile from Decatur, standing on a siding, with its rear end projecting on the main track. Dyson ordered it carried around the train and reset on the track beyond. He also ordered the men at that time to put two switch points on the car, remarking they would stop at a steel pile from an eighth to a quarter of a mile further down the track, and get some rail braces. A hand named Bodkin was charged with the duty of slackening the speed of the car by placing his foot on the brake, which projected above the floor of the car, and controlled the speed. After getting the hand car around the gravel train and loading the switch points, the men resumed their places on it, and Dyson told them to pump up and get out of the way of the gravel train, which was backing towards them. There was a very steep grade from that point to the steel pile, and the testimony of some of the witnesses is that the car acquired a velocity of 12 or 15 miles an hour as it went down the grade, instead of 6 to 8 miles, which was the usual velocity. When from 40 to 50 feet from the steel pile, Bodkin threw his weight on the brake, diminishing the car's momentum so suddenly that four of the men on the front end were thrown from their positions to the ground, and the plaintiff seriously injured by the fall and the car running on him after he fell. The petition contains three specifications of negligence against the defendant: First, that the hand car was run by Dyson at a dangerous rate of speed, to wit, at the rate of from 12 to 20 miles an hour; second, that Dyson's habit had been theretofore, when directing the operation of a hand car, to give an order (styled a "cautionary command") to stop at from 150 to 200 feet from the place at which it was intended to stop, but that he neglected to give such command on this occasion, or to give it at the proper and customary time; third, that the defendant failed to use ordinary care to provide plaintiff a reasonably safe place in which to work, the hand car on which he was ordered to ride being overcrowded, as it contained 11 men and 2 switch points, so that plaintiff's footing was precarious, and he had no room in which to brace himself. A verdict for $1,100 in favor of plaintiff was rendered. At the conclusion of plaintiff's evidence, as well as at the conclusion of all of the evidence, an instruction in the nature of a demurrer to plaintiff's case was requested by the defendant, and refused. This ruling, as well as the rulings on other instructions and on the evidence offered, are assigned as errors.

A careful perusal of the testimony has convinced us the charges of negligence were supported by substantial proof, and that the circuit court ruled correctly in submitting the case to the jury. The evidence in regard to the speed at which the car was running varied widely, plaintiff testifying it was making 15 miles an hour, while one witness for the defendant swore its speed was not higher than 6 miles an hour. Other witnesses testified to 8, 10, and 12 miles. There was testimony also that the usual rate of speed was 8 or 10 miles an hour. Dyson told the men who were working the handles to pump up in order to escape the gravel train. The grade was steep, and, if an excessive speed was attained, it was with his knowledge, as he was on the car, and he does not pretend he gave any direction to lower it. That the car was crowded is not denied, but it is claimed there were no more than the usual number of men on it. The question in this connection is, not whether there were more than usual, but more than were compatible with the...