Huston v. Quincy, O. & K. C. R. Co.

• Decision Date: 17 February 1908
• Citation: 107 S.W. 1045,129 Mo. App. 576
• Court: Missouri Court of Appeals
• Parties: HUSTON v. QUINCY, O. & K. C. R. CO.

107 S.W. 1045

129 Mo. App. 576

HUSTON v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

February 17, 1908.

Rehearing Denied March 2, 1908.

1. MASTER AND SERVANT — INJURIES TO SERVANT — QUESTIONS FOR JURY — NEGLIGENCE OF MASTER.

In an action for personal injuries to plaintiff while in the employ of defendant, the question whether defendant was negligent in furnishing defective machinery held, on the facts, to be for the jury.

2. SAME — NEGLIGENCE OF FELLOW SERVANT.

In an action for personal injuries to plaintiff while in the employ of defendant, the question whether plaintiff's fellow servant was negligent held, on the facts, to be for the jury.

3. SAME — LIABILITY OF MASTER — FELLOW SERVANT — "OPERATION OF RAILROAD" — STATUTORY PROVISIONS.

Rev. St. 1899, § 2873 [Ann. St. 1906, p 1655], provides that every railroad corporation owning or operating a railroad in this state shall be liable for any damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof. Held, that the work of repairing or reconstructing a bridge over which a railroad company's track was laid is work performed in "operating such railroad," within the meaning of the statute.

4. SAME — EVIDENCE — SUFFICIENCY — NEGLIGENCE OF MASTER.

In an action for personal injuries to plaintiff while in the employ of defendant, evidence held sufficient to support a verdict finding that defendant was guilty of negligence in failing to remedy defects in the machinery.

5. SAME — DUTY OF MASTER — DEFECTIVE MACHINERY.

It is the duty of a master to exercise reasonable care to provide his servant with reasonably safe tools and appliances with which to work.

6. SAME — RISKS ASSUMED BY SERVANT.

Risks assumed by the servant as part of his employment are those which naturally and incidentally belong to the business as long as it is conducted by the master within the limits of reasonable care. The additional risks produced by the negligence of the master are not assumed.

7. SAME — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for personal injuries to plaintiff while employed by defendant in operating certain machinery, the question of contributory negligence held, on the facts, to be for the jury.

8. SAME — INSTRUCTIONS — CAUSE OF INJURY.

In an action for personal injuries to plaintiff while employed by defendant in operating certain machinery, it was error to submit to the jury the issue whether the injury was caused in whole or in part by failure of defendant to maintain and use a certain appliance, where the absence of such appliance could not have co-operated with the other defects in machinery, and obviously could not have been an independent cause of the injury.

9. APPEAL — HARMLESS ERROR — INSTRUCTIONS.

In an action for personal injuries to a servant while operating certain defective machinery, an instruction submitting to the jury the issue whether the injury was caused in whole or in part by failure of defendant to maintain and use a certain appliance on the machine was prejudicial, where the absence of such appliance could not in any way have contributed to the injury.

Appeal from Circuit Court, Grundy County; George W. Wanamaker, Judge.

Action by G. C. Huston against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

J. G. Trimble and Hall & Hall, for appellant. Hubbell Bros., for respondent.

JOHNSON, J.

Plaintiff sued for damages for personal injuries alleged to have been caused by the negligence of defendant, and recovered judgment in the circuit court. Defendant brought the case here by appeal, and presents a number of grounds for a reversal of the judgment, among them the contention that its request for a peremptory instruction in the nature of a demurrer to the evidence should have been granted. Plaintiff was a member of a crew employed by defendant, a railroad company, in the operation of a steam pile-driving machine. His principal duty was to cook for the crew, but when not thus employed he was required to work as a laborer on or about the machine. On the day of his injury, March 10, 1906, when his work of serving the noon meal was finished, he was directed by the foreman to work on the pile driver. A spile had just been raised by the machine and stood between the leads in a position where hand power was required to shift its top to a place where it could be covered by the hood, preparatory to being driven by the hammer. The machine had an ordinary flat car for its base. The boiler and engine were at one end of the car, and the leads were at the end of a supporting frame which projected a few feet beyond the other end of the car. The leads consisted of two parallel uprights about 35 feet high, set about two feet apart, and connected at the top by a cross-piece. The hammer, an iron block weighing about 2,700 pounds, was fitted to the leads in a way to slide upward and downward between them. It was suspended by a rope which ran over a pulley wheel on the top of the cross-piece and then downward to a revolving drum operated by power from the engine. By means of a ratchet wheel and dog the drum could be held immovable at the will of the engineer, and the hammer thereby held stationary at any point in its course, and, by using a friction clutch, with which the drum was provided, when the dog was released the rate of speed of the hammer in its descent could be controlled by the engineer even to the extent of stopping the hammer altogether. The clutch consisted of a fixed wheel, having its periphery beveled and a receiving socket corresponding thereto, so that when the engineer applied the power to the clutch the beveled surfaces of wheel and socket were brought into close contact and the friction thus engendered served as a brake on the drum and could be made sufficient to prevent the drum from revolving and thereby to stop completely the descent of the hammer. One of these beveled surfaces was of metal, the other of wood, the latter being called by the witnesses "shoes." An iron block called the "hood" was carried suspended from the hammer and when a spile was placed in position to be driven the hood was moved down, fitted over its top, and detached from the hammer, in order that the hood might receive the direct force of the blows, and thereby prevent the top of the spile from being shattered. The hood could not thus be placed until the spile had been set perpendicularly between the leads. In the present instance its top was leaning against one of the leads. Plaintiff climbed to the top of the frame for the purpose of pushing the spile over to its proper place. He was about 15 feet from the ground. Another laborer lower down assisted him, and both unavailingly exerted their strength, after which plaintiff called to his fellow laborer to hand him a crowbar, and squatted down to reach it. One of his feet stood on a board, the other on an iron pipe. His footing was somewhat insecure, and he placed one of his hands on the top of the spile...