Hulett v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 30 April 1878
• Citation: 67 Mo. 239
• Parties: HULETT v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

67 Mo. 239

HULETT

v.ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Boone Circuit Court.--HON. G. H. BURCKHARTT, Judge.

Wells H. Blodgett for appellant, argued that upon the undisputed facts there was no liability to the plaintiff for the injuries he had sustained, citing Cummings v. Collins, 61 Mo. 520; Keegan v. Kavanaugh, 62 Mo. 230; Wharton on Negligence, (2 Ed.) § 212; Gibson v. Erie Rwy. Co., 63 N. Y. 449; Devitt v. Pacific R. R. Co., 50 Mo. 305 Shearm. & Redf. on Negligence, § 94, p. 125; Ib. § 94, p. 123; Ib. §98; Ib. § 99; Priestly v. Fowler, 3 M. & W. 1; Williams v. Clough, 3 H. & N. 258; Laning v. N. Y. Cent. R. R., 49 N. Y. 521; McGlinn v. Brodie, 31 Cal. 376; Muldowney v. Ill. Cent. R. R. 39 Iowa 615; Ladd v. New Bedford R. R., 119 Mass. 412; Gildersleeve v. Fort W., 1. & S. R. R., 33 Mich. 133.

O. Guitar for respondent, cited Gibson v. Pacific R. R., 46 Mo. 163; Lewis v. St. L. & 1. M. R. R., 59 Mo. 495. Buffington v. A. & P. R. R., 64 Mo. 246.

NAPTON, J.

The facts in this case are undisputed. There was no conflicting evidence. They are all stated in the testimony of the plaintiff himself, who testified with candor, and no doubt correctly stated the circumstances under which he was seriously injured.

The plaintiff was an experienced brakesman and had been more than two years and a half in that capacity on defendant's road. He undertook to couple a baggage car with a flat car loaded with rock. He knew that the flat car was lower than the other and was fully aware of the need of caution in coupling cars of unequal height. The inequality in the height of the cars was apparent. His usual mode of coupling cars of unequal height was to use a crooked link on the higher car, but in this case he propped up the drawhead on the flat car as high as it would go and turned down the link on the baggage car, which was a straight one, and being mistaken in his calculation of the distance between the elevation of the two cars and standing on the ground to make the connection, the drawheads did not meet, except so near the end of the link that the drawhead of the baggage car slipped over and he would have been crushed to death but for the projection of some rocks on the flat car, between which he escaped with his life, but was severely injured. The work was entirely under his control, the engine being subject to his orders. No one gave him any orders or directions and the two cars were both complete in their construction, and their apparatus without any defects. These facts being testified to by the plaintiff the only question was whether the defendant, under the circumstances, was liable for the damage received by the plaintiff. There was a demurrer to the evidence, but the circuit court refused to take the case from the jury, and submitted it with instructions, which were abstractly correct.

In the first instruction for plaintiff the jury were told that “if the drawheads on the cars were so constructed as not to be adapted to each other, and were so placed that they would not come in contact in coupling, but pass each other, and that the same was unknown to the plaintiff, and could not have been discovered at the time by the use of ordinary care and diligence, and that the same was known to defendant or could have been known by the exercise of proper care and diligence,” the plaintiff was entitled to recover. Now, the testimony of the plaintiff himself was that he was perfectly aware of the fact that the two cars were of different heights; that the difference was obvious to the eye of any one, and that being aware of this difference, he pushed up the draw head of the flat car and turned down the link on the...