Howard v. Missouri Pac. Ry. Co.

• Decision Date: 31 March 1903
• Citation: 73 S.W. 467,173 Mo. 524
• Parties: HOWARD v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

73 S.W. 467

173 Mo. 524

HOWARD v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 31, 1903.

MASTER AND SERVANT—INJURIES TO SERVANT—DEFECTIVE APPLIANCES—NEGLIGENCE—EVIDENCE.

1. Plaintiff, a railroad trackman, was injured by the breaking of a handle bar on a hand car. The handle was made of hickory, and broke at a point where it was covered with iron, and, after being broken, appeared to be slightly unsound. The hand car was used every day by plaintiff and his foreman, who was a careful man, and, though the bar was under constant observation and inspection, no defect was discovered therein, and a careful examination thereof would not necessarily have revealed the defect, which could have been determined only by cutting into the wood or breaking it. Held, that such facts were insufficient to establish defendant's negligence in failing to provide plaintiff with a safe bar.

Appeal from Circuit Court, Saline County; Saml. Davis, Judge.

Action by Louis T. Howard against the Missouri Pacific Railway Company. From an order granting plaintiff a new trial, defendant appeals. Reversed.

M. L. Clardy and Wm. S. Shirk, for appellant. Robt. B. Ruff, for respondent.

FOX, J.

This suit was instituted in the circuit court of Saline county on the 6th day of May, 1899. The petition is in due form, and the injury complained of is based upon the alleged negligence of defendant in respect to the failure of the defendant to furnish plaintiff with a reasonably safe hand car and appliances for operating the same. The allegations in the petition which are important in the determination of the questions involved in this case are as follows: "That said hand car and handle bar was composed of old, defective, and rotten material, and wholly unfit for the use for which said car and handle bar were used by said defendant. That said defendant had actual knowledge of the defective condition of said handle bar and hand car. Such defect in said handle bar and hand car was such that said defendant, by the use of ordinary care and diligence, could have known of the same." It is not necessary to burden this opinion by inserting the other formal parts of the petition, as the only controversy in this suit is as to the sufficiency of the testimony upon the specific acts of negligence herein quoted. The answer of defendant was a general denial of the allegations in the petition, and a plea of contributory negligence. The replication was a denial of the allegations in the answer as to contributory negligence. This cause was tried by a jury, and at the close of the evidence on the part of the plaintiff the court gave a peremptory instruction directing the jury to find the issues for the defendant. In obedience to such direction, the jury returned a verdict for the defendant. Plaintiff filed his motion for new trial, which was by the court sustained, and this appeal is prosecuted to this court from the action of the trial court in sustaining the motion for new trial.

The record does not disclose any reason assigned by the court for its action in respect to the motion for new trial; hence the duty is devolved upon this court to examine the entire record to ascertain the legal reasons if any, for this court's action upon this motion. An abstract of the record and proceedings in this cause is filed by appellant, and also a brief discussing fully the errors complained of by the appellant. The respondent does not dispute the correctness of the abstract, or, at least, there is no additional abstract filed, suggesting any imperfections in the one filed by appellant, nor are we favored with any brief or argument by respondent in support of the action of the trial court. Nothing to the contrary appearing before us, we shall assume that the abstract of the record as filed by appellant is correct, and our conclusions must be reached from that source.

There is but one question presented in this cause for our determination, and that is, "Did the testimony, as introduced by plaintiff, warrant the court in submitting the cause to the jury?" This leads us to an examination of the testimony as offered by plaintiff. Plaintiff resided at Grand Pass on the 15th day of March, 1899, and was working for the defendant. At the time he was injured he was on the hand car of defendant. In company with the section foreman and other section men, he started out in the morning on the hand car to do some work on defendant's road, and in operating the hand car one of the handle bars broke. Plaintiff was thrown off the car and injured. It will be observed that it was the defect in the handle bar of this hand car of which plaintiff complains, and claims that defendant was negligent in furnishing him a rotten and defective handle bar with which to operate the hand car. As to the nature and character of this appliance that broke, the testimony fails to disclose. No witness undertakes to describe it, but we infer from what the witnesses do say in respect to it that it is rather a simple appliance, or, in other words, it is not a complicated piece of machinery, which would require some regular method or system of inspection. Plaintiff, in testifying in respect to this handle bar, says, first: "When they took the car off of me, I am not certain whether I had this handle bar in my hand or picked it up. I had it when I got on my feet. I looked at...