Herriman v. Chicago & A. R. Co.

• Decision Date: 24 October 1887
• Parties: IRA HERRIMAN, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 435

IRA HERRIMAN, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover damages for personal injury. The petition alleged: " That, on said twenty-eighth day of April, 1886, said plaintiff was in the employ of the defendant as a common laborer, and was working upon the track of the defendant, and was under the control and direction of a boss, whose duty it was to direct the said plaintiff in and about his duties as such laborer, as well as a number of other employes of said defendant; that, on said day, said boss, in the discharge of his said duties, ordered the said plaintiff, in connection with others of his said co-laborers to remove a certain iron rail from the track of said defendant; that said boss ordered said plaintiff and three of his co-laborers to take hold of said rail, at one end thereof, while the other end remained on the ground, and throw said end so taken hold of around in a certain direction; that said laborers, in obedience to said command took hold of said rail as directed, and raised the said rail from the ground, and threw the same as so ordered; that, when said rail was so raised, the end on the ground caught under another iron rail on said railroad track, but said boss negligently and carelessly ordered said laborers to throw said rail when said end was so caught and held down; and, by reason of the said carelessness and negligence of said boss in so ordering said rail thrown, when so caught and held down, said rail so thrown flew back and struck this plaintiff on the foot, breaking his large toe and bruising and lacerating his foot and other toes, by reason of which he was sick and sore for the period of two months, and suffered great pain in body and mind, was put to the expense of hiring a physician and surgeon, and lost two months from his labor wherefore plaintiff says he is damaged in the sum of one thousand dollars, for which he asks judgment and costs of this suit."

The answer tendered the general issue.

The plaintiff's evidence tended to show that at the time of his injury he was in the employ of the defendant railroad company as a section hand, working on the track near the station, at Marshall, in Saline county, under the supervision of one Benjamin, as section foreman. As the case turns mainly on the evidence of the plaintiff, we give it in his own language, as stated in the bill of exceptions: " On the day that I was hurt there were four of us working together besides the foreman; the railroad at that point runs east and west; we were working just west of the depot; Benjamin was then with us; he directed us about the work; we were throwing a rail out of the main track; we were up at one end of the rail; the side-track comes in across the main track; the guard-rail lays inside the track altogether, in the middle of the track; we picked up the rail; one end lay between the guard-rail and the side-track rail; the foreman told us to pick it up and throw it out; we throwed it, and one end caught; the rail was twenty-four feet long; we raised the west end of the rail and threw it north; it lay inside the track altogether; four of us had hold of the rail and raised the west end, the other end remaining on the ground, and walked round north; the foreman was standing ten or twelve feet behind us; he told us to pick it up, carry it round, and throw it out; we picked the end of the rail up and carried it round and threw it out; we picked the end of the rail up and carried it round, and he told us to throw it, and to throw it heavy; we threw it and the end that was on the ground caught, and the rail sprang back and caught my foot, broke my big toe and the one next to it, and mashed the others up some; I was fifteen or sixteen feet from the end that was on the ground; there were two men between me and the other end; I was hurt in this way: Four of us picked up the rail; we were at the west end; one end of the rail was on the ground, and lying between the guard-rail and the rail of the main track; two men were between me and the end on the ground, and I could not see that end; the boss told us to pick up the rail; he was standing about ten feet behind us as we carried the rail around, and to our right. Just as I stepped on the rail of the track the boss said, ‘ throw hard. ’ We threw all together, as directed, and the rail flew back and caught my foot that was resting on the rail in the track; the end on the ground must have caught under the guardrail, just as we threw, or was caught when the boss said throw hard; I don't know which."

The cross-examination showed that the plaintiff had worked before on railroads in the capacity of section hand, and that necessarily he had some familiarity with the particular character of the work he was directed to perform. He further testified as follows: " I don't know that any one said he-oh-heave, as is usual; the boss just told us to pick up the rail and throw it out; we hardly ever took out a rail without he told us to; he tells us to lift up the rail; he told us to pick up one end of the rail, and to carry it around and throw it off the track; that is all I heard him tell; when we took the rail round, when we were walking round, he told us to throw it, and to throw it heavy; the end of the rail was all right when we picked it up; the end of the rail was not then fastened; when we got as far as he thought was right, he told us to throw it, and it bounced back and hit my foot; I saw it was fastened after it was too late; the spring-back threw it on top of the guard-rail; the end must have caught somewhere, or it would not have bounced back; we found an old rail in the track that had to be taken up; the foreman told us to pull out the spikes and take off the straps; I don't know that we turned it over; if we did, it was to get hold of it better; he told us to pick it up; we walked round north; he told us to throw it, and we did so."

For the defendant, Benjamin testified as follows: " I live at Marshall; am section foreman on the Chicago and Alton railroad, and have been for years; the business of section men is to obey the boss, put in and take out rails and ties, raise joints, and to keep up the track generally; they work under the direction of the foreman; plaintiff had been working under me about fifteen days before he got hurt; he had been doing track work; at the time he was hurt, we were working at the west switch at Marshall; the road runs east and west; the side track and switch is on the north side of the track; we were working right at the end of the switch; the rail we took out extended to the end of the switch; the rail was taken out of the north side of the track; it was twenty-four or twenty-five feet long; I had four men working there; as we were going west that morning, I found a broken rail right at the end of the switch; I told the men to go down and get a rail that would fit in there; they went and got a rail, and took the broken rail out and laid it right in the middle of the track, until they put the other rail in, and then they threw it out, and plaintiff got hurt; they brought the new rail before they took the old one out; to take the rail out, they pulled the spikes and rolled the rail to the middle of the track, then put in the new rail, then threw the old one out; that was the usual way of taking rails out; they took hold of the west end and threw the rail south; I was standing west of them about thirty feet."

Cross-examined " I am still in the employ of the defendant, and have been ever since the accident, and for several years before; I found a broken rail, and told the men to go back and get a rail and put in there; I told them to take out the old rail; I don't remember of telling them anything else; I stayed there while they went after the rail; I was standing round looking at the men while they were at work; I did none of the work, but directed them what to do; I told them to get a rail and put it in; did not tell them what to do with the broken rail; they knew well enough what to do with it; I may have said a little more to them, but that is all I remember; I did not tell them to pick up the west end; did not tell them to throw it round; the broken rail was in the main track on the north side; they carried the west end south; the east end was on the ground about a foot and a half south of the guard-rail; I saw them throw the rail; I did not see what caused it to come back till afterwards; I suppose it got caught, because it bounced back; I was looking at the men carrying the rail round; I was standing to the side of them, could see them plainly; could not see the rail very well, as the men were between me and the rail; after they had got far enough south I could have seen it if I had looked; the men ought not to have thrown it at all; I had frequently told them not to throw a rail, but to lay it down; I did not know they were going to throw it in time to stop them; I know they carried it to the south side; the side track...