Kansas City Southern Ry. Co. v. Rogers

• Decision Date: 26 February 1913
• Docket Number: 3,846.
• Citation: 203 F. 462
• Parties: KANSAS CITY SOUTHERN RY. CO. v. ROGERS et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

203 F. 462

KANSAS CITY SOUTHERN RY. CO. v. ROGERS et al. ^[1]

No. 3,846.

United States Court of Appeals, Eighth Circuit.

February 26, 1913

Where a railroad section man was injured by the fall of a telegraph pole, which he was assisting in erecting, he was not negligent as a matter of law in failing to run in the right direction to escape the fall.

J. B McDonough, of Ft. Smith, Ark. (S. W. Moore and J. G. Schaich both of Kansas City, Mo., on the brief), for plaintiff in error.

J. D Head, of Texarkana, Ark., for defendant in error.

Before SANBORN, Circuit Judge, and WM. H. MUNGER and TRIEBER, District judges.

WM. H MUNGER, District Judge.

Plaintiff in error will be designated as defendant, and defendant in error as plaintiff; such being their titles in the trial of the case in the court below. Plaintiff brought this action to recover for injuries sustained by him while in the employ of the defendant as a section hand. The defendant having made a change in the location of its line, it became necessary to erect two telegraph or telephone poles on the sides of the new line. The work of erecting the poles was in charge of two linemen, who were brothers, named Moore. They had authority to call upon the section foreman for the assistance of his men in erecting the poles. They called upon the section foreman, and he directed plaintiff, with several of his fellow workmen, to assist in the erecting of a pole of chestnut wood weighing, according to the evidence, approximately 1,250 pounds. Plaintiff, in his petition, charged negligence on the part of the defendant as follows:

'That said defendants then and there negligently and carelessly failed to furnish a reasonably sufficient force of men to handle the heavy pole then sought to be erected; said defendants were further negligent and careless in failing to furnish sufficient and proper instruments or pike poles with which to reasonably and safely carry on the erection of said poles; and said defendants then and there negligently and carelessly furnished pike poles the points of which were torn and old and unsuitable for the purpose for which they were being used; further, that the defendants negligently and carelessly failed and neglected to use a sufficient guide board, and then and there negligently and carelessly failed to use a board of sufficient width to guide the said pole into the hole while it was being erected by the plaintiff and the other servants working with him, and then and there negligently and carelessly failed to provide reasonably safe means of any kind or character, both for the erection of said pole and for the guiding of same into the hole in which it was to be set.'

The evidence shows that, in erecting the pole, they had two pike poles, which were used by the Moores. The plaintiff and one of his companions were directed to lift on the pole, each with a shovel, which they inserted in season cracks in the pole. Two others of the sectionmen assisted with their shoulders near the base of the pole. A crossbar was used under the pole to hold it when it became necessary to change the position of the pike poles and shovels. An iron bar or rod was used at the butt of the pole to guide it into the hole. According to the testimony, the pole at the base was approximately 14 inches in diameter, and the hole in which it was to...