McGuire v. Quincy, Omaha & Kansas City Railroad Co.
| Decision Date | 21 January 1908 |
| Citation | 107 S.W. 411,128 Mo.App. 677 |
| Parties | McGUIRE, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Clark Circuit Court.--Hon. Chas. D. Stewart, Judge.
AFFIRMED.
Judgment affirmed.
Campbell & Ellison, Jas. G. Trimble and Willard P. Hall for appellant.
(1) The court should have instructed the jury to find a verdict in favor of defendant, because the evidence showed that there was a safe way for plaintiff to perform the duty in which he was engaged and he voluntarily chose a hazardous way in which to perform it. Morris v. Railroad, 108 F. (C. C A.), 747; Suttle v. Railroad, 144 F. (C. C. A.) 668. (2) The trial court erred in holding that plaintiff did not assume the risk incident to switching done in the usual and customary manner by the crew of which he was a member and in holding that if said manner was careless defendant was liable. 2 Labatt on Master and Servant, secs. 649, 650. And the doctrine there announced finds support in a great many adjudicated cases. Nottage v. Sawmill Phoenix (C. C.), 133 F. 979; St. Louis, etc., Co. v. Miller, 126 F. 495, 61 C. C. A. 477, 63 L. R. A. 551; Railroad v. Baker, 91 F. 224, 33 C. C. A. 468; Martin v. Railroad, 118 Iowa 148, 91 N.W. 1034, 59 L. R. A. 698, 96 Am. St. 371; Kinsley v. Pratt, 148 N.Y. 372, 42 N.E. 986, 32 L. R. A. 367; O'Maley v. Gaslight Co., 158 Mass. 135, 32 N.E. 1119, 47 L. R. A. 161; Birmingham Elec. Co. v. Allen, 99 Ala. 359, 13 So. 8, 20 L. R. A. 457; Browne v. Siegel, 191 Ill. 226, 60 N.E. 815; Mulhern v. Lehigh Co., 161 Pa. 270, 28 A. 1087; Swenson v. Osgood Mfg. Co., 91 Minn. 509, 98 N.W. 645; Williams v. Wagner Co., 110 Wis. 456, 86 N.W. ___; Helmhe v. Thilmany, 107 Wis. 216, 83 N.W. 360; Langlois v. Dunn (R. I.), 57 A. 910; Coal Co. v. Muir, 20 Colo. 320, 38 P. 378, 26 L. R. A. 435, 48 Am. St. Rep. 299; Grand v. Railroad, 83 Mich. 564, 47 N.W. 837, 11 L. R. A. 402; McGinty v. Waterman (Minn.), 101 N.W. 300; McRickard v. Flint, 114 N.Y. 222, 21 N.E. 153; White v. Wittemann L. Co., 131 N.Y. 631; 30 N.E. 236; Honor v. Albrighton, 93 Pa. 475; Anderson v. Lumber Co., 67 Minn. 79, 69 N.W. 630; Fleming v. Railroad, 27 Minn. 111, 6 N.W. 448; Chicago Pack. Co. v. Rohan, 47 Ill.App. 654; Munn v. Wolff, 94 Ill.App. 122; Keenan v. Edison Illum. Co., 159 Mass. 379.
Higbee & Mills for respondent.
(1) It is one of the duties of an employer to exercise reasonable care that the place in which he sets his servant to work, and the system or method adopted by the employer for the doing of the work shall be reasonably safe for the servant and free from latent dangers known to the master or discernible by an ordinarily prudent master in the circumstances. The duty extends to the system or method of arranging the work. Burns v. Tel. Co., 70 N.J. L. 745, 67 L. R. A. 956, 957; Francis v. Railroad, 127 Mo. 658, 673, instruction 11. Whether plaintiff in attempting to open the knuckle, contributed to his injury in going between the cars and attempting to draw the pin and open the coupler with both hands was a question solely for the jury. Shunting the cars without notice was negligence. Black v. Railroad, 172 Mo. 187. It is only in a case in which reasonable men cannot fairly differ that a court may declare a plaintiff guilty of contributory negligence. It was Clark's duty to have notified plaintiff of his danger. Kennedy v. Railroad, 190 Mo. 424; Allen v. Transit Co., 183 Mo. 426; Young v. Waters-Pierce Co., 185 Mo. 666; Thorpe v. Railroad, 89 Mo. 650; Francis v. Railroad, 127 Mo. 658. (2) It is claimed plaintiff knowingly chose a dangerous way when there was a safe way known to him to do his work. This question was submitted to the jury by defendant's fifth instruction. The verdict is conclusive that there was evidence tending to show that the course pursued by plaintiff was not more dangerous than the other, and this court will not consider whether he chose the safe or dangerous course. Black v. Railroad, 172 Mo. 187; Brady v. Railroad, 102 S.W. 984.
--Plaintiff, who was a brakeman in the employ of the defendant company, had his right hand mutilated while coupling cars. At the station of Danforth, where the accident happened, several sidetracks and a "Y" were connected with the main line, the left or west leg of the Y running northwardly from the main line, which ran east and west. Plaintiff was one of a crew on a freight train, the remainder of the crew consisting of another brakeman and foreman, an engineer and a fireman. It was known as a switching crew and worked about Novinger, a station on defendant's line. The particular train plaintiff was on the day of the accident had run to Danforth, one mile west of Novinger, with four cars of coal, two in front and two behind the engine. Seven or eight cars loaded with coal were standing on the Y and the intention was to collect those cars and reform the train at Danforth. In doing this plaintiff, by order of the foreman, rode two of the cars of the train down the Y after they were detached from the engine. He was on his way back to the train and walking along by the side of the cars which stood on the Y, when the foreman ordered him to arrange those standing cars for coupling; at the same time telling him he (the foreman) intended to "pull track No. 1 and then shove the Y." By the expression "pull track No. 1" he meant the loaded cars on that track would be hauled to the west of the intersection with the Y in arranging the train, and we understand "shoving the Y" meant the engine would be attached to the cars standing on the Y to move and connect them with the train. Plaintiff stepped between two of the standing cars to adjust one of them for a coupling, and at nearly the same instant the foreman threw the switch of the Y so the engine would run along the main track detached from the other two cars of the train, after having imparted sufficient momentum to said two cars to carry them (or for them to "drift," as the witnesses said) on and along the Y without further propulsion. They drifted far enough to collide with the cars on the Y, shoved these together and crushed plaintiff's hand, while he was setting the coupler. The foreman's version of the facts agreed with plaintiff's in the main. The foreman admitted telling plaintiff to go between two of the cars on the Y and prepare them to couple, but denied telling him the Y would be shoved. This circumstance is material only because it tended to assure plaintiff there was no danger the cars which he was to work between, would be knocked together while he was between them. That is, it might have left the impression on his mind that instead of being turned loose to drift down the Y while he was arranging for a coupling, no cars would be thrown on the Y except by the engine shoving them; and as the engine had passed along the main track just before plaintiff went between the cars, and he had been told it would pull the loaded cars thereon to the west of the intersection of the Y, he had no reason to be on the watch for drifting cars. Plaintiff testified that when a brakeman was to couple or uncouple cars, the custom was not to move other cars toward those he had gone between, until he was seen to be clear and where the other cars would not hit him. He said if there had been a man standing to signal the engineer and watch for plaintiff's signal, no accident would have happened. The casualty occurred in this way, according to plaintiff's testimony. The hour was after dusk and plaintiff carried a lantern in his left hand. The cars were equipped with automatic couplers operated by levers. The coupling appliances were called "knuckles" and resembled two human hands or fists with the fingers clasped into each other. A pin was connected with the couplers in some manner, which had to be pulled out before the couplers would lock. Plaintiff pulled a lever bound by a chain to one of the couplers and designed to open it, but the lever failed to work. He then took hold of the pin and chain with his left hand and tried to adjust them in that way. His right hand was on a "knuckle," and while pulling on the chain he instinctively threw out his lantern as a warning. Just then the cars were forced together by the impact of the drifting cars and his hand was caught and mangled so badly three fingers had to be amputated. The only discrepancy in the versions of the foreman and the plaintiff, except as to the statement that the foreman intended to shove the Y, related to the custom of moving cars while a brakeman was making a coupling The foreman said they (the train crews) knew no rules; but a man had to act on his own judgment; and the general effect of his testimony is that it was incumbent on a brakeman, while coupling cars, to look out for his own safety. Verdict and judgment for $ 3,000 were given against defendant.
The point is made that plaintiff chose a dangerous instead of a comparatively safe way to arrange for the coupling; that he worked on the south side of the standing cars, which, looking toward the engine, would be the left side, when he might have worked on the north side where he would have been visible to and could have signalled the engineer, who sat on the right (north) side of the engine cab. Considerable stress is laid on this circumstance, but we do not discern its importance, inasmuch as the injury was not caused by the engine entering the Y and backing cars against the ones plaintiff was between, but by two drifting cars. That plaintiff failed to keep himself within the engineer's view was not conclusively established, and if it had been, it would have been insufficient ground for a ruling by the court that plaintiff was guilty of negligence contributing to the accident.
Contributory...
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