Lee v. St. Louis, M. & S. E. R. Co.

• Citation: 87 S.W. 12,112 Mo. App. 372
• Court: Court of Appeal of Missouri (US)
• Decision Date: 02 May 1905
• Parties: LEE v. ST. LOUIS, M. & S. E. R. CO.

87 S.W. 12

112 Mo. App. 372.

LEE v. ST. LOUIS, M. & S. E. R. CO.

St. Louis Court of Appeals. Missouri.

May 2, 1905.

MASTER AND SERVANT — RAILROADS — INJURIES TO SERVANT — ASSUMED RISK — CONTRIBUTORY NEGLIGENCE — EVIDENCE — STATEMENTS BY SERVANT.

1. It is the continuing duty of the master to use reasonable care to furnish his servants with a reasonably safe place to work and with reasonably safe and suitable appliances, and also to use reasonable care to keep such place and appliances in a reasonably safe condition.

2. A servant on entering his employment assumes such risks as are ordinarily incident to the employment, and, in addition, by continuing in the service and using defective appliances and machinery without complaint, such hazards as he knew or ought to have known.

3. In an action by a servant against the master to recover for personal injuries, evidence examined, and held, that whether plaintiff assumed the risk of injury was for the jury.

4. Where plaintiff, a section hand, was thrown from a hand car and injured by the sudden locking of the bull wheel and pinion, by which the car was derailed, caused by the defectiveness of such machinery, mere evidence of the occurrence was sufficient to raise a presumption of negligence on the part of the railroad company.

5. Where plaintiff, a section hand, was thrown from a hand car by the sudden locking of the gearing by which it was operated, causing the car to stop suddenly, he was not guilty of contributory negligence in failing to use the brake when he discovered that something was wrong with the gearing, since such operation, if accomplished, would merely have added to the sudden stoppage of the car which threw him on the track.

6. In an action for injuries to a servant, a statement made by plaintiff's foreman to a witness as to the cause of the accident, which was not a part of the res gestæ, was inadmissible against the master as a statement against interest, though the foreman stood in the relation of a vice principal.

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

Action by James E. Lee against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff, a section hand in the employ of the defendant railroad on its section in Cape Girardeau county, was injured October 26, 1903, by the derailment of a handcar on which he and two other laborers and Corbett, the section foreman, were riding in their line of duty. His testimony, in substance, was that he had been employed on different railroads as a section hand for 12 or 13 years, and on defendant's section for some months; that on the day of the injury Mr. White, the roadmaster, was with the section gang, and, upon his desiring to leave, a couple of the hands came to plaintiff with an order from the foreman to put on the hand car, which they did, and pumped the car up to where the foreman and roadmaster were, whereupon plaintiff asked the foreman if he wanted him to go along, and the foreman replied, "Get on and come with us," which he did, in company with the foreman and the two laborers, Hudson and Lamb. They ran the car up the road for some distance, possibly two or three miles, when the roadmaster signified his intention of getting off and walking from there. Upon leaving the car, the roadmaster directed the foreman to go back to his men. They then started to return to their work. Corbett, the foreman, and plaintiff were behind the front handle, facing the direction the car was moving; Lamb and Hudson were aft of the rear handle, facing the same direction. All were engaged in pumping the car. The car was being propelled carefully at a rate of speed about equal to twice as fast as a man would walk. After having progressed thus for a mile or more, the hand car suddenly derailed, and the plaintiff was precipitated headforemost over the handle at which he was working, and thrown with the side of his head against the track rail, thereby bruising the side of his head, injuring his arm, shoulder, and leg, and inflicting severe and permanent injury to his ear, from the effects of which his hearing is greatly impaired. The handcar was of the usual pattern, and could be propelled with the gearing either in the front or in the rear. It was the custom to propel this one with the gearing foremost. The car was propelled with a lever and two handle bars. Two men stood, one at either end of each handle, and, by means of pumping up and down, the gearing of the car was caused to rotate. An upright, called the "pitman," connected with the lever bar, which lever bar was on a pivot, and in which the handles were. The pitman was, by means of what was called the "gooseneck," connected with the large or bull wheel, in which were cogs. By means of the pumping up and down of the handles, the pitman connected with the lever bar, which was, by means of the gooseneck, connected with the bull wheel, caused the bull wheel to revolve, and the cogs therein fitted into other cogs on the small wheel or pinion; the pinion, being stationary near the center of and on the foremost axle of the car, would cause said axle to revolve with each revolution of the pinion. The two car wheels on said axle were, or should have been, stationary thereon. They, of course, would revolve with the axle, and the car was thus propelled either forward or backward, as desired. The subjoined plate No. 1 will show a side view of the hand car, the bull wheel and pinion, with the cogs therein, the gooseneck, pitman, and side view of the lever bar, also the foot brake on the side of the car; Plate No. 2 will show a top view of said car; that is, the lever bar in which the handles at either end of the car were fastened therein crosswise

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of the car. The cogs of the bull wheel and pinion were defective, in that they were tight and rigid in their bearing, and would bind one upon the other to some extent at times when the car was in motion. The car had been in charge of the section gang about a week; had recently come to them from the shops. Plaintiff knew that its gearing was defective, in that it would bind and pull heavy at times. He also knew that the left front wheel of the hand car was loose on the axle when it should have been affixed stationary thereon, and that it would play back and forth lengthwise on the axle to some extent, but not enough to permit the wheel to get off the rail; also that the flanges on some of the wheels were broken and not in good order; and says that he had been a little afraid of the car on account of the looseness of the left fore wheel, and had considered the car somewhat dangerous from that defect if run at a rapid rate of speed, but did not consider it dangerous if run at the rate of speed it was being propelled on the occasion in question. The injuries did not result, however, from the defective left fore wheel, nor from the defective flanges on the wheels, but resulted from the defective gearing or defective cogs on the bull wheel and pinion. Plaintiff said of the defect which caused the injury: "I could not say that I considered that anything dangerous, for the

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reason I had never seen an accident occur from a thing like that. I really had never seen a car put down as tight as that was. I could not say that I considered that a dangerous defect." While the car was moving along as above indicated, the cogs in the bull wheel and pinion suddenly and without warning became locked at a time when the rear handle bar was down and the foremost handle bar was up; therefore, as the men at the rear handle bar, with the usual force, lifted on their handle, instead of the bull wheel and pinion revolving, as they should have done and propelled the car forward, they being locked, the front end of the car was raised and veered off of the track, causing the injury. Plaintiff said: "The first sensation I had was — I was pulling on the right side; the car swung to the right, then veered back to the left, and I started, intending — That is, my thoughts went that way; I don't know whether I made any effort physically, or not, to get on the brake. I was riding on the brake side of the car. My thoughts were that I would get on the brake, and that would turn the car back straight on the track or check it; but when I found myself I was on the track. I was pitched off the car. I do not remember how far it threw me, nor how long I lay there; but that was my thought, and immediately I was thrown on the track." The brake was what is usually known as a foot brake, and could have been brought into use by plaintiff placing his foot thereon and pressing it down.

Upon cross-examination, plaintiff testified that he had been employed some as a section foreman, and was an experienced section man and familiar with hand cars; that the car was running at the time of the accident much slower than cars are usually run; that it was being operated with care; that he had seen nothing before the accident from the defective cogs which appeared dangerous to him from that cause, if the car was operated at a moderate rate of speed, as it was.

Plaintiff introduced several of his colaborers on the section, who testified in the main to the same state of facts above set out, and, while a number of the witnesses on the part of plaintiff stated on cross-examination that they had considered the car dangerous, they none of them seemed to consider it dangerous in that the cogs of the bull wheel and pinion which brought about the catastrophe in this case were defective sufficiently to cause a derailment of the car, running at the rate of speed shown in the evidence. The evidence disclosed that the car, taken all in all, was old, worn, and defective; the flanges were broken on certain wheels; the looseness of the left front wheel, and...