Hodges v. St. Louis & S. F. R. Co.

• Decision Date: 23 February 1909
• Citation: 135 Mo. App. 683,116 S.W. 1131
• Parties: HODGES v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

116 S.W. 1131

135 Mo. App. 683

HODGES v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. MASTER AND SERVANT (§ 285) — INJURY TO SERVANT — PROXIMATE CAUSE — QUESTION OF FACT OR LAW.

Whether the master's negligence was the proximate cause of an injury to a servant is an issue of fact if contrary opinions may arise on the evidence; if not, it is a question for the court.

2. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — NEGLIGENCE — BURDEN OF PROOF.

Where plaintiff alleges that he was injured while putting coal into a locomotive by stepping on a piece of coal, which caused him to fall, and that his injury resulted from defendant's failure to furnish oil for his torch, he has the burden of showing that the injury was caused by lack of light.

3. MASTER AND SERVANT (§ 276) — INJURY TO SERVANT — PROXIMATE CAUSE — SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to show that defendant's failure to furnish oil for plaintiff's

torch was the proximate cause of his injury while putting coal into a locomotive by stepping on a piece of coal, which caused him to fall.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Jesse Hodges against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action for personal injuries. After alleging the incorporation of the defendant, appellant here, and the employment of the plaintiff, respondent, as a night watchman and "hostler," as the cleaner and caretaker of a locomotive not under use is called, at Wittenberg, a station on appellant's road, and that it was his duty to watch the locomotive engines held at the station, and to keep up the fires under their boilers during the night, so that they would be ready to move at any time, it is alleged in the petition that in the performance of his duties it was necessary for respondent to have a light, and that appellant furnished him with a torch, such as is commonly used by railroad men, consisting of a tin bowl with a spout to hold the wick, and that it was the duty of appellant to supply respondent with the necessary oil for this torch; that on the night of the 14th of January, 1907, which was a very dark night, respondent was compelled to perform his work without a light because of appellant's carelessness and negligence in failing to supply him with oil for this torch, although repeatedly notified by respondent that he was out of oil; and that while respondent was in the discharge of his duty and was shoveling coal into one of appellant's engines at Wittenberg, respondent being unable, on account of the darkness, to see the floor or deck of the engine, "made a misstep, and stepped on some loose coal or cinders lying on the floor or deck, and was thrown too far forward while in the act of pitching a lump of coal into the furnace, and his left hand came violently in contact with the edge of the rim of the furnace opening, and two of the fingers of that hand were cut off by the force of the blow." Averring that he had suffered great pain from the injury, and had lost much time, and that his earning capacity has been greatly diminished, respondent charges that the injury and loss sustained by him "are directly due to the carelessness and negligence of the defendant in failing to supply him with a light while in the discharge of his duties, and requiring him to perform the same in the dark, and that, by such carelessness and negligence of the defendant, plaintiff has been damaged in the sum of $3,000, for which sum he prays judgment." The answer, after a general denial, pleads contributory negligence and assumption of the risk. To this a general denial of the new matter in the answer was set up in reply.

Respondent, testifying in his own behalf — and we here give his testimony as set out by his counsel in the statement and brief filed — testified: That he had charge of the engine on which the accident occurred. That it was his duty to keep up fire all night and move the engines about when other trains came there to pass one another. That he had full control of the engines; was night watchman and hostler; had to clean fires and keep up steam so that the engines could be moved almost any minute, and also coal the engines. On the night of January 14th, when the accident occurred, he had only one engine in charge. It was a very dark, rainy night. It was hardly possible to get along in the performance of his work without a light. He had been furnished with torches, and also had been furnished, time and again, with oil. Explaining what a torch was, he continued that he had no oil for his torch on this night in January; that he was without oil then and had been without it for some eight or ten days previous; that he had notified the master mechanic at Cape Girardeau, which was some 30 miles distant from Wittenberg, time and again, that he had no oil; that he had sent the empty cans in so that they could send him oil, and had asked the agent at Wittenberg to write for oil, that he was getting out of oil. The agent at Wittenberg had helped him out as long as he could, then ran out of oil himself, and wrote to Cape Girardeau for it. He was in charge of the job at Wittenberg under Mr. Henry, whose office was at the Cape, and it was from that place he was in the habit of getting oil when he had needed any. During part of the time the company had failed to furnish oil he had bought oil himself to keep from being in the dark, but stopped that because he did not want to furnish the company with oil. They were supposed to furnish him. On the night of the accident respondent was through cleaning the engine, and was getting the fire in shape. He got his orders from the master mechanic to be mighty careful, and take good care of the flues, so that they would not leak, and the latter told witness he would furnish whatever he needed that was necessary. To keep the flues from leaking on cold nights, "you are bound to have a good heavy fire, keep it up against the flues, so that the flues will not get any cold draft, and to keep them in good condition." The flues are toward the front, toward the head of the engine. The engine is equipped with a fire box. "The fire box is first. When you are on the engine, you stand in front of the fire box." From the opening of the fire box to the flues is from 11 to 14 feet, and then come the flues. "You have to throw the coal back to the fire box when you want to bank a good fire up against the flues to keep them in good shape." On the night in question witness was cleaning the engine, and had just finished cleaning her and straightened out the fire, and had fixed a good fire up against the flues — was shoveling the coal. In banking the fire, one always used lumps of coal as much as he possibly could. That was the general rule in banking a good fire. "A man has to use lumps to get them back up against the flues as near as he possibly can." And he was throwing lumps in, up against the flues, and it was while doing this that he slipped, and got hurt. He had no light at the time but that that came out of the fire door. He had no oil for his torch nor any light for his torch at the time. He could not see the dock of the engine. He was asked: "How large is the opening of that fire box?" He answered: "Why, it is perhaps — from the fire box doors to the doors of the tender — perhaps four feet between there, and the width of it is not more than two and a half feet wide, maybe three feet. I don't know." He said that the width of the opening and the length would be perhaps four feet from the fire box door to the tender where the coal lies. He lost two fingers by the accident. He had some coal in his hand, a little lump, and intended to throw it up against the flue, and, when he made a step, he stepped on some coal and stuff, and it slipped and threw him up against the edge, and took his fingers off; mashing one clear off, and the other was hanging on the side. He could not say how the coal came to be on this deck; that is, the coal he stepped on. It must have fallen there somehow or other. He had swept behind the door, but could not see what he was sweeping, it was so dark. He could not see the deck — that is, the floor — at all; could not see anything on that, the fire door being about a foot or more higher from the floor of the tender and engine, and all the light he had to see by was what was thrown out of the door of the fire box. It did not throw any light on the floor.

So far we have followed the statement of the case as given by the learned and industrious, as well as accurate, counsel for the respondent. Going a little further into the abstract than he has done, the following also appears in the evidence: Mr. Henry, the master mechanic, had given respondent orders to be "mighty careful and take good care of the flues," so that the flues would not leak, and had told him that he would furnish what was necessary that he needed. Henry had told him this in person. Said the respondent substantially: "When you are standing on the engine, you stand in front of the fire box, and from the opening of the fire box to the flues is from 11 to 14 feet." On the night of the injury, he says he had been cleaning the engine, and had just finished cleaning her, and straightening out the fire, and had fixed a good fire up against the flues, and was shoveling in coal, and in doing this latter used lumps of coal as much as he possibly could; had...