Minnier v. Sedalia, W. & S. W. Ry. Co.

• Citation: 167 Mo. 99,66 S.W. 1072
• Court: Missouri Supreme Court
• Decision Date: 19 February 1902
• Parties: MINNIER v. SEDALIA, W. & S. W. RY. CO.

66 S.W. 1072

167 Mo. 99

MINNIER v. SEDALIA, W. & S. W. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

RAILROADS — MASTER AND SERVANT — DEATH BY WRONGFUL ACT — USE OF STANDARDGAUGE CAR ON NARROW-GAUGE TRUCKS — ASSUMPTION OF RISK — INSTRUCTIONS.

1. In an action by the personal representatives of a locomotive engineer alleged to have been killed through negligent defects in the condition and construction of his train and the track, an instruction that deceased's knowledge would not work an assumption of risk unless the defects were so obviously dangerous as to threaten immediate injury, and that an assumption of risk could not be predicated if deceased, notwithstanding his knowledge of the defects, supposed, with reason, that he could safely operate the train by the use of care and caution, was erroneous, because not fully stating the law as to the assumption of risk, and being calculated to mislead the jury into believing that the deceased only assumed the risk if the danger was so obvious as to threaten immediate injury.

2. In an action by the personal representatives of a locomotive engineer alleged to have been killed by defects in his train, including, among others, the use of a wide-gauge car mounted on narrow-gauge trucks, defendant requested an instruction that deceased assumed the risk if he knew that such cars had prior to that date been adopted as a part of the company's car equipment, and had been in repeated and ordinary use. The instruction was modified by adding that no recovery could be had on account of the use of the car if the jury believed that the danger was so obvious as to threaten immediate danger to the employés while in the exercise of ordinary prudence and caution. Held, that the modification was erroneous, because, in effect, charging that a servant only assumes such risks as threaten immediate danger, and disregarding the general rule that the servant assumes the risks ordinarily incident to the employment.

3. There being no evidence that such a car was an unsafe appliance, the instruction was further vicious as being without foundation in the evidence.

4. A complaint in an action for negligently causing the death of a locomotive engineer alleged negligence in the use of a standard-gauge car mounted on narrow-gauge trucks, and in the overloading of such car. All the persons who had knowledge of the facts testified that the car was not overloaded, the only testimony to the contrary being that this car swayed more than the narrow-gauge cars composing the rest of the train. There was evidence that the car in question and other similar ones had been used on defendant's road for some time, and that similar cars had been used on certain other narrow-gauge railroads, and there was no showing that there were other narrow-gauge railroads in existence than those mentioned in the testimony. Held to show that the use of the car did not constitute negligence.

Appeal from circuit court, Benton county; W. W. Graves, Judge.

Action by Martha M. Minnier against the Sedalia, Warsaw & Southwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

M. L. Clardy, Wm. S. Shirk, James Humphrey, and H. P. Lay, for appellant. Sangree & Lamm and Montgomery & Montgomery, for respondent.

MARSHALL, J.

The plaintiff recovered a judgment for $5,000 damages for the death of her husband on the 2d of November, 1897, caused by an accident on the defendant's road at a point about three miles north of Warsaw. Her husband was the engineer of the train. The defendant appeals.

The negligence charged in the petition is: "First, that the roadbed, track, ties, bridges, and trestles were out of repair, and were not in a reasonably safe and sound condition; second, that the defendant failed to furnish a sufficient number of competent brakemen to handle the train, and that one of those employed was incompetent, unskilled, and inexperienced; and, third, that the defendant's road is a narrow-gauge road, three feet wide, and that the defendant negligently put a broad-gauge car, mounted upon narrow-gauge trucks, in the train, heavily loaded, so that the same was top-heavy, and that said car would not adjust itself to the tracks and curve, and that in consequence of all such alleged negligent acts the broad-gauge car, so mounted, left the track and became derailed, and that by reason of the insufficiency and incompetency of the brakeman the train could not be stopped until it was on a trestle or bridge, with the result that the top-heavy broad-gauge car broke through and toppled over, pulling the said locomotive with it," and killing the engineer, the plaintiff's said husband. The answer is a general denial, except as to the ownership of the road, and the fact that the plaintiff's husband was the engineer, and a special plea of assumption of risks, among which was the risk that caused the accident. The reply is a general denial.

The defendant owns a narrow-gauge railroad running from Sedalia to Warsaw, and the deceased had been employed as an engineer on the road for quite a long time before the accident. The train in question consisted of the engine, six freight cars loaded with merchandise, a baggage car, and a passenger car. The broad-gauge car, mounted on the narrow-gauge trucks, was placed next to the engine, which the evidence shows was the usual and proper place to put it, and was loaded to within six or eight inches of the top with shingles. The accident occurred at a bridge or trestle about three miles north of Warsaw. There is a slight curve in the road just north of the trestle, and a down grade. The broad-gauge car was sound, well constructed, and had been in use on the road about a month or six weeks before the accident. When the train approached the trestle it was moving slowly, with steam shut off, and under good control. The trestle or bridge was about three hundred feet long. About one hundred and ten or fifteen feet north of the bridge or trestle the forward trucks of the broad-gauge car jumped off the track. The rear trucks remained on the track. This caused the cars behind it to also leave the track. The train ran on, the forward trucks of the broad-gauge car and the trucks of the other cars running or bumping on the cross-ties, until all the train except the passenger car was on the bridge or trestle. Then the engineer succeeded in bringing the train to a full stop. When this was done one of the narrow-gauge cars about the middle of the train toppled over and fell off the the bridge, and this caused the cars behind and before it to also turn over alternately, — that is, first one behind it, and then one in front of it, — until the broad-gauge car was finally affected, and it then turned over and fell off the bridge, and dragged the engine over with it. The cars fell to the bottom of the ravine, which was some 30 or 40 feet deep, measured from the top of the bridge. Every one jumped off and escaped injury except the engineer. He went down with the engine and was killed. The broad-gauge car was numbered 1,001. The evidence as to the condition of the track and the trestle is so conflicting as to leave no doubt that the witnesses on one side or the other committed rank perjury in describing it.

Counsel for plaintiff have submitted the following epitome of what their witnesses swore to:

"For instance, as to the condition of the track: First. The evidence clearly shows that at a point three or four feet, at least very close, to the place where the trucks of the car No. 1,001 jumped the rail, there was a low joint, and a body of ties so decayed and unsound as to be wholly incapable of supporting the rail; that at this point the wheels of the truck under the car 1,001 mounted the rail, and ran along for three or four feet upon the ball of the rail, and then fell down upon the ties. From this point up to the commencement of the trestle, which was 110 feet, the ties were put in about 25 inches from center to center, and this would make 48 ties between these two points; and some witnesses who counted the ties put the number at 48. Other witnesses stated the number of ties between these points was 45. The great bulk of the ties between these points were shown by our witnesses to be rotten, decayed, and doty. Some of said ties, while on the surface appearing all right, were a mere shell and rotten on the inside, and the witnesses estimated the number of such rotten ties in said 110 feet from 15 to 29. For instance, Mr. Gregg, one of our witnesses, puts the number at 15. Mr. Allen puts the number at 20. Other of our witnesses put the number of rotten ties from 15 to 20, while of defendant's witnesses, Mr. Harvey puts the number at 29, and other of defendant's witnesses put the number at from four to five. The wheels of the trucks crowded the ties together, cutting, smashing, and breaking many of them. On the day of the wreck, as soon as the news of it reached Warsaw, a great number of people came out to see it. Some of these interested themselves in ascertaining the cause of the wreck, and in examining the condition of the track. They found this low joint and rotten ties as stated. Some of the ties that were left in the track were so rotten that with fingers and toes these people pulled out a great number of spikes. One witness pulled out ten with his fingers. Others pulled out a number with their toes. These spikes so pulled out were remaining in the ties in place as originally driven, but by reason of the rotten condition of the ties they would not hold in the ties, and could be removed as aforesaid. Even after the track had been rebuilt so trains could use it, other witnesses visited the point, and one witness pulled seventeen spikes out of the old ties remaining in place, in the manner narrated above, and other witnesses saw this done. In short, a great number of witnesses were examined as to the condition of this track north of the trestle, and...