Mack v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 14 January 1907
• Parties: JAMES MACK, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

101 S.W. 142

123 Mo.App. 531

JAMES MACK, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 14, 1907

Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.

AFFIRMED.

Judgment affirmed.

Brown & Dolman for appellant.

(1) Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of the community. Chrismer v. Telephone Co., 194 Mo. 209, and cases cited. (2) "It is equally well settled that a master can conduct his business in his own way, and the servant, knowing the hazards of his employment as the business is conducted impliedly waives the right to compensation for injuries resulting from causes incident thereto, though a different method of conducting the business would have been less dangerous." Mathis v Stock Yards Co., 185 Mo. 446; Minnier v Railroad, 167 Mo. 113; Bradley v. Railroad, 138 Mo. 302; Blundell v. Manufacturing Co., 189 Mo. 558; Harrington v. Railroad, 104 Mo.App. 670; Beckman v. Anheuser-Busch, 98 Mo.App. 560; Olson v Railroad, 38 Minn. 117; Larson v. Railroad, 43 Minn. 423; Naylor v. Railroad, 53 Wis. 664; Elliott v. Railroad, 150 U.S. 248; Loving v. Railroad, 128 Mo. 359; Fore v. Railroad, 114 Mo.App. 557. (3) And ordinarily section men and track men assume the risk incident to the running of trains, whether extra trains or trains running on schedule time. 3 Elliott on Railroads, sec. 1298; Hinz v. Railroad, 93 Wis. 16; Railroad v. Leech, 41 Ohio St. 388; Railroad v. Wachter, 60 Md. 395; Ring v. Railroad, 112 Mo. 230. (4) The court did instruct the jury "that the defendant had the right to run its trains over its track at all times, and that all persons being on the track are bound to take notice of such right and of the fact that it may be exercised at any time and to take such measures for their own protection and safety as are reasonably necessary under such circumstances." Concretely stated, it means that the law presumes that plaintiff knew that a train was liable to pass along the track at any time. (5) The foreman was guilty of no negligence in failing to warn plaintiff before putting on the brake. The circumstances were such as to call upon him to act before he could talk, and the court should have instructed the jury as requested in defendant's fifth instruction that there was no evidence of negligence in this respect. Dickson v. Railroad, 124 Mo. 151; Lee v. Railroad, 112 Mo.App. 409, and cases cited. (6) The damages awarded were so excessive as to bear no relation whatever to the injury. It is impossible to extract the elements of $ 1,500 damages from the admitted facts. Railroad v. O'Mara (Ky.), 76 S.W. 402; Sawyer v. Railroad, 37 Mo. 264; Haynes v. Trenton, 108 Mo. 134; Adams v. Railroad, 100 Mo. 569; Stoetzele v. Swearingen, 90 Mo.App. 593; Cook v. Railroad (Mo.), 68 S.W. 230; Taylor v. Railroad (Mo.), 84 S.W. 878; Railroad v. Gibson (Tex.), 79 S.W. 351; Bragg v. Railroad (Mo.), 91 S.W. 537.

Brewster, Ferrell & Mayer for respondent.

(1) The court committed no error in refusing defendant's demurrer offered at the close of all the evidence. (2) The question of contributory negligence was properly submitted to the jury. 2 Thomp. on Neg., 975; Stephens v. Railroad, 86 Mo. 229; Stephens v. Railroad, 96 Mo. 211. (3) The plaintiff did not assume the risk of dangers resulting from the negligence of defendant. Warren v. Railroad, 113 Mo.App. 498; Schroeder v. Railroad, 108 Mo. 322. (4) The court committed no error in refusing defendant's instruction numbered 5. Schroeder v. Railroad, 108 Mo. 329. (5) The verdict is not excessive. Dimmett v. Railroad, 40 Mo.App. 658.

OPINION

JOHNSON, J.

Plaintiff while employed by defendant as a section hand was injured by being thrown from a moving handcar and brought this action to recover the damages sustained, alleging that the injury was the direct result of defendant's negligence. He had judgment in the sum of $ 1,500 and defendant appealed.

Defendant contends that, under the facts in evidence most favorable to plaintiff, the action must fail and first we will determine the questions raised in support of that contention. Plaintiff was one of a number of laborers employed by defendant in repairing its track between Trenton and Altamont. A boarding camp was maintained by defendant at an intermediate point called Blake for the accommodation of these workmen. On the morning of the day of the injury, July 12, 1905, breakfast was served at about half past six o'clock, after which a gang of men, among them plaintiff, proceeded on four handcars to a point about four miles east of the camp where they engaged in work. A westbound passenger train was scheduled to pass Blake at thirty-five minutes past six o'clock, but on that morning it was late and was proceeding under orders to run five hours late, which would make it due at Blake at thirty-five minutes past eleven o'clock. The gang of laborers mentioned was in charge of a foreman, who directed all of its movements as well as those of the members thereof. At half past eleven o'clock, the foreman ordered his men to place the handcars on the track and run to camp for dinner. He took no precautions to ascertain if a train was approaching though he knew the belated passenger train then was past due, nor did he give any orders to safeguard the passage of the handcars to camp. The country over which they had to travel is broken and uneven and the railroad contains many sharp curves and runs through cuts and over fills the whole way. Plaintiff rode on the forward car with seven fellow-workmen and the foreman. The latter attended to the brake and the men supplied the motive power. Plaintiff and three others were stationed at the forward handle. Being crowded, they stood sidewise facing north, each with one hand on the handle, moving their bodies up and down as the handle moved. This position and motion were maintained when the car rolled down grade by gravitation, a thing it was doing at the time of the occurrence in question. No stop was made in approaching curves and the cars had covered perhaps half of the distance to be traveled and the last one had just rounded a sharp curve when the passenger train running over thirty miles per hour suddenly appeared from behind. The rear handcar was overtaken and thrown from the track. Plaintiff at first did not see the train, but the foreman did. Quickly, and without warning, he applied the full force of the brake and the speed of the car was checked so suddenly and violently that plaintiff, surprised, was thrown forward between the rails of the track. While lying prostrate, face downward, with his head towards the advancing car, a wheel connected with the gearing, which projected downward from the middle of the body of the car struck plaintiff at the base of his neck and passed along his back to the hips. The car stopped with the wheel resting on plaintiff's body. The men quickly removed it and plaintiff crawled from the track just in time to escape the oncoming train, which could not be stopped until after it had passed the place of injury. Defendant introduced substantial evidence tending to show that the whistle of the engine was repeatedly sounded and the bell was kept ringing as the train ran along this section of the track, but the evidence is overwhelming that none of the men on the handcars heard these warnings, if they were given, and the sight of the engine was the first warning anyone had of its approach.

The specific acts of negligence pleaded in the petition involve the following acts of defendant: First, in giving the order to place the handcars on the track and run to camp in the face of knowledge that the past due passenger train was likely to appear at any moment. Second, In running the train in a manner to menace the safety of the laborers. Third, The failure of the foreman to send back a flagman to flag the train, should it appear, or to take any other precautionary measure to guard the safety of the men. Fourth, The act of the foreman in applying the brake without warning.

The defenses interposed are: First, That the facts adduced do not accuse defendant of negligence. Second, Plaintiff voluntarily assumed the risk of the injury inflicted; and Third, was guilty in law of contributory negligence.

First, we will consider the principles involved in the second defense. The rule that a master has the right to conduct his own business in his own way and may adopt such instrumentalities and follow such methods as he deems best suited to his business is restricted in its application by a very important qualification. He must always remain within the boundaries of reasonable care. In that scope, he is given full range and, though his methods may not be the best; the place he provides his servants the safest; or the tools and appliances with which he requires them to work the newest or most approved, he cannot be held liable for injurious consequences to his servants resulting from his conduct. In accepting employment, his servants are held in law to the implied agreement that they will perform his work in his way and with the means and instruments he provides and will not call him to account for injuries resulting from dangers incidental to the work as he conducts it.

But in this State the doctrine is fairly established that in accepting employment the servant does not assume the risk of injuries directly resulting from the master's negligence. The right to conduct his business in his own way does not give the master a license to be negligent. No human relation can give to one man the right to inflict an injury on another, either intentionally or...