Lessenden v. Missouri Pac. Ry. Co.

Citation142 S.W. 332,238 Mo. 247
PartiesLESSENDEN v. MISSOURI PAC. RY. CO.
Decision Date27 November 1911
CourtUnited States State Supreme Court of Missouri

A man 36 years old, who had been in the service of a railroad company in a switchyard for 11 years, and who was a good workman, sustained a personal injury resulting in the loss of both legs. His right leg was amputated four inches above the knee and the left leg six inches above the ankle. The wages he earned were not shown. As a result of the accident he was confined to the hospital for nearly five months. Held, that a verdict for $25,000 was excessive and should be reduced to $15,000.

Woodson and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge.

Action by Alonzo C. Lessenden against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

M. L. Clardy and Edw. J. White (Elijah Robinson, of counsel), for appellant. Guthrie, Gamble & Street, Boyle & Howell, and A. F. Smith, for respondent.

VALLIANT, C. J.

Plaintiff recovered a judgment in the circuit court of Jackson county against defendant for $25,000, as for personal injuries alleged to have been suffered by him through the negligence of a fellow servant. From that judgment the defendant prosecutes this appeal.

The accident occurred at Osawatomie, in Miami county, Kan., where the plaintiff resided and through which the defendant's railroad runs. The action is founded on a statute of Kansas making a railroad company liable for injuries inflicted on an employé through the negligence of a fellow servant. The following statement we take from appellant's brief: "At the time of the accident in question, plaintiff was employed by the defendant in what is known as the tank shop at Osawatomie, Kan., and had worked for the company 11 years, 7 years of which time he had worked with the tank crew at Osawatomie. The accident occurred about 9:15 a. m. at the defendant's roundhouse at Osawatomie. The plaintiff claimed that he, together with three other men, were instructed by the foreman to move a tank from the roundhouse out onto the track, for the purpose of putting a new wheel on it; that the track upon which the tank was standing was downgrade from the door of the roundhouse to the turntable, which was about 50 feet distant, and that the fall was about three inches in ten feet; that the tank was coupled to the engine, and, in order to loosen the pin, it became necessary to put bars under the rear wheels of the tank and pinch it up toward the engine; that an employé named Colyer took a pinch bar and put it under one wheel, and he (plaintiff) took a steel bar and put it under the other wheel and pinched the tank up about a fourth of an inch so as to loosen the pin, which was then withdrawn, and thereupon the foreman told him and Colyer to hold the tank until he (the foreman) could get some blocks to block it at the point where they wished to put it; that, while he was holding his bar, Colyer removed his, thus permitting the tank to run back on the bar that plaintiff was holding and mashed it down to the rail, catching his foot and throwing him down, so as to permit the tank to run over both of his legs; that he was standing on the left-hand side of the track facing the tank, with the toe of his right foot on the rail on the left side, and his left foot five or six inches outside of the rail."

Plaintiff's testimony tended to prove as follows: The usual way to take up the slack for this purpose was to put another engine behind the tank to push it up; but, when an engine was not available, the work was done by men using bars to "pinch" the tender up. A quarter of an inch was sufficient to pinch the tender to loosen the pin. When the tender was pinched up enough, wooden blocks were to be put under or against the wheels to hold it in place or keep it from running back until they could pull the pin, and then the tender would be moved back towards the turntable by a process they called "blocking back." The foreman of the repair crew superintended the work of pinching and blocking. Two men were sufficient to do the pinching, each with a bar to each of the rear wheels. There were two kinds of bars usually used in such work. One was called a "pinch bar"; the other a "steel bar." The pinch bar was larger; but both kinds were made under the direction of the foreman for this kind of work, and the men were instructed to use both in such work. On this occasion the plaintiff was using a steel bar and Colyer a pinch bar. The plaintiff testified that the foreman said to him, "Take that steel bar, as Colyer has got a pinch bar." The foreman was standing by them and directing the work. The plaintiff with the steel bar, and Colyer with the pinch bar, stood behind the rear wheels of the tank, inserted the points of their bars between the wheels and the rails, procured their leverage, and pinched the tank up about a quarter of an inch. Then the foreman said, "Hold her boys, until I get some blocks." While the foreman went for the block, some one hollered that the pin was out. Then Colyer pulled his pinch bar out, and the weight of the tank being thrown on the steel bar held by plaintiff forced it down on the rail, caught his foot under it, and threw him in such a position as to cause the tank to run over both legs, which resulted in the amputation of both. The plaintiff's testimony also was to the effect that Colyer was a new man in the work and inexperienced, and that, if he had held the pinch bar in place as he should have done, it would have been sufficient, with the force of the steel bar held by the plaintiff, to have held the tank in position until the blocks could have been placed.

For the defendant the foreman testified that he did not order the plaintiff to use the steel bar on this occasion, and had repeatedly told plai...

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