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

• Decision Date: 21 October 1905
• Citation: 114 Mo. App. 396,90 S.W. 102
• Court: Missouri Court of Appeals
• Parties: MEEHAN v. ST. LOUIS, M. & S. E. R. CO.

90 S.W. 102

114 Mo. App. 396

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

St. Louis Court of Appeals. Missouri.

October 21, 1905.

1. MASTER AND SERVANT—INJURY TO SERVANT —SAFE PLACE TO WORK.

The rule requiring a master to furnish a servant with a reasonably safe place to work does not apply in the case of a servant employed to assist in laying a railroad track, since the place is constantly undergoing a change in character by the very work the servant is performing, and the work requires a continuous change of place.

2. SAME—ASSUMPTION OF RISK.

A servant employed to assist in the laying of a railroad track assumes the risk of injury resulting from an unevenness of the track, unobserved by any of his fellow servants.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

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

L. F. Parker and John Egan, for appellant. J. J. O'Donohue, for respondent.

BLAND, P. J.

In January, 1904, defendant was engaged in laying a track on its roadbed near Afton, in St. Louis county, employing for the purpose from 75 to 80 men and a train consisting of a locomotive engine and five cars. Two of the cars were used to haul ties, two others were loaded with steel rails 33 feet in length, and the fifth was a pioneer car, on the sides of which were rollers. Over these rollers the rails were pushed from the adjoining car and thence carried to the track. On the back end of this car was a platform considerably lower than the body of the car. On January 5, 1904, plaintiff, then in the employ of the defendant, was directed by Reed (the boss) to stand on the platform of the pioneer car and bolt angle bars on the ends of the rails as they were shoved over the rollers from the adjacent car. After the angle bars were bolted on, 10 other employés would take the rail from the pioneer car and carry it to its place and lay it on the ties on the track. On January 9th plaintiff, from some cause, was unable to fasten the angle bars on as fast as Reed wanted it done and was causing some delay, and Reed ordered plaintiff to go upon the ground and bolt on the bars. In obedience to the order, plaintiff put some angle bars on his shoulder, went upon the ground, and put two on one rail without accident. But, when he was proceeding to attach the bars to the second rail, plaintiff's evidence is that he threw two bars down at the end of the rail, then stooped down and took hold of one of them to put it in place, and that, just as he was raising the bar from the ground, the rail sprung up, came in contact with the index finger of his right hand, where he had a grip on the angle bar, and cut it off. The suit is to recover for the loss of this finger.

The specific negligence alleged in the petition is that Reed, the foreman, negligently ordered the train to back over loose ties and unspiked rails, and that as the train was backed it passed over the loose rails and ties, and the weight and motion of the train caused a rail to ascend and strike plaintiff's hand. The evidence shows that the roadbed had been graded and leveled ready for laying the track. The track was laid with broken joints in the following manner: From nine to ten ties were laid on the roadbed about three feet apart, a rail was then laid on these ties and fastened or attached to the abutting rail by the angle bars, through which, and the rails, four bolts were passed and fastened. The rail was spiked down to the ties, and then by order of Reed the train was slowly backed up about one-half the length of the rail (15 or 16 feet) and stopped, and then another rail was laid on the other side of the track in the same manner, and the train again backed up. This process of laying rails continued through the forenoon of each day. In the afternoon the track laid in the forenoon was gone over and the number of ties under each rail doubled and the rails spiked down to them. The defendant's evidence is, and there is no countervailing evidence, that the angle bars could be attached to the end of the rails as well by the operator standing on the ground as on the platform of the pioneer car, and that in dry weather it was customary for the operator to stand on the ground; that the work could be done faster on the ground, for the reason two men could work at it, if necessary, when but one could work on the platform; and that after January 9th (the day plaintiff was injured) no angle bars were attached on the platform of the pioneer car, but were all attached on the ground. Plaintiff's witnesses testified that the rail which came in contact with plaintiff's finger was caused to spring up on account of a "high tie" laid 15 or 16 feet from the end of the rail, opposite the end that struck plaintiff's finger, and that this "high tie" caused the rail to spring or fly up when the pioneer car was backed on it. The "high tie" was laid by plaintiff's co-employés, and there is no evidence that Reed, the foreman, or any of the employés, noticed that it was "high" until the accident, and there is nothing in the evidence showing that there was anything about the "high tie" to attract attention. Plaintiff's finger was amputated at the first joint, no complications set up, and it healed in due time. The jury assessed plaintiff's damages at $1,000. Pending a motion for new trial, on the suggestion of the trial court, plaintiff remitted $500 of his recovery, and a judgment was rendered in his favor for $500, from which defendant appealed in the usual way.

There is no substantial evidence that plaintiff was guilty of any negligence that contributed to his injury. The principal contention of defendant is that there is no substantial evidence that defendant was guilty of negligence, and for this reason its peremptory instruction, offered at the close of the evidence, should have been given. The mode of laying the track and the use and operation of the train for that purpose, in the manner described, are not shown to be unusual or necessarily dangerous, nor was the injury caused by any mishap to the train itself. The proximate cause of the injury was, according to the evidence, a "high tie," placed 15 or 16 feet from the end of the rail, which caused the other end of the rail to...