Mitchell v. Wabash R. Co.

• Citation: 76 S.W. 647,97 Mo.App. 411
• Parties: JOHN MITCHELL, etc., Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Decision Date: 23 December 1902
• Court: Court of Appeal of Missouri (US)

76 S.W. 647

97 Mo.App. 411

JOHN MITCHELL, etc., Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 23, 1902

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Audrain Circuit Court.--Hon. Elliott M. Hughes, Judge.

AFFIRMED.

STATEMENT OF THE CASE.

The substantive allegations of the amended petition--on which the cause was tried--are that plaintiff in April, 1899, was employed by the defendant as a common laborer; that he was put to work with other employees of defendant on the reconstruction of an old and abandoned piece of railroad near Bussey in the State of Iowa; that he was inexperienced in such work; that after having worked on the reconstruction of the road for about five days, he was directed by the section foreman, along with eight or ten other inexperienced laborers, to take a push car and move some old steel rails that in obedience to the order the push car was loaded with the old rails and pushed along for a short distance, when it broke down and one of the rails fell upon the plaintiff's ankle and severely and permanently injured it. The negligence alleged is that the defendant constructed the push car out of brash, unsound and insufficient timber, and that from the inexperience of the employees put to load it, and by the permission of the section foreman, it was overloaded; that it broke down by reason of faulty construction.

The answer alleged that under the laws of Iowa, the plaintiff and other laborers working with him and the section boss were fellow-servants; alleged that the injury, if any, to plaintiff was occasioned by the negligence of plaintiff and his fellow-servants in overloading the push car; alleged that prior and subsequent to the injury, the plaintiff was afflicted with rheumatism and that his injuries have been complicated on account of said disease, and not on account of the injury, if any, received by the breaking down of the car and denied generally all other allegations not specifically admitted. The reply was a general denial.

Plaintiff's evidence tended to prove that he was raised on a farm, was about nineteen years old at the time of the accident, and had never before worked on a railroad; that he had worked five or six days on the road for defendant before he was injured, but had not used a push car before the injury; that on the morning of the injury, he with eight or ten other young men employed by defendant, were told by the section boss to take a push car and move some old steel rails that had been torn up and scattered along the roadway; that the push car they were told to use looked like a new car and was painted; that he did not inspect the car; that he and his co-employees took the car, pushed it to the old rails and loaded it with them; that in order to move the car it had to be pushed along the track by the men, some at the end and some at the side of the car; that he took a position at the side of the car and was helping to push it along the track. When it had been moved a short distance, one of the sills which supported the plat-form or bottom of the car broke in two and some of the rails fell off, one striking plaintiff on the ankle and inflicting the injury; that the sill that broke was a light, brittle piece of wood, either partially decayed or taken from an old dying tree, and was unfit for the purpose for which it was used, and would bear only from one-third to one-fourth the weight of a sound piece of wood of the same size, and that its defects could have been easily detected from its weight, or from boring into it or working it or from inspection; that there were twenty rails on the car when it broke down and that sixteen of such rails was an ordinary load for a push car; that plaintiff's fellow-servants who assisted in loading the car were inexperienced in loading such cars and that the section boss gave no direction as to the number of rails that should be loaded on the car, but was near by when it was loaded.

In respect to the making of the car, John Mitchell (another person than the plaintiff, but testifying as a witness for the plaintiff) swore that the defendant had all of its push cars built at Moberly, Missouri, and that he built them and that he supposed he built the car that broke down, but did not know as he was not at Bussey when, or after the car broke down; that he built push cars that were sent by defendant to Iowa to be used in the reconstruction of that piece of road; that the defendant had two push cars that he did not construct, but he did not know where they were.

In respect to the injury, the evidence is that plaintiff's ankle was lacerated, bruised and badly sprained; that he was treated in the defendant's hospital at Moberly, Missouri, for five or six months, and was lame when he left the hospital and had continued lame; that the sprained ankle was larger than the other one; that it will take a long time to get entirely well and possibly the injury is permanent, and that there was evidence of injury to the ankle bone, and that the injury prevents the plaintiff from walking in the natural way, and that the joint will always be weaker on account of the injury and more liable to disease and easier hurt.

On the part of defendant, the evidence of the physician who treated plaintiff while in the hospital was, that no bones were broken; that the ankle was lacerated and seriously sprained; that a short time after he entered the hospital a rheumatic condition developed in plaintiff's wrists and elbow and involved his ankle joint and retarded his recovery from the injury; that sprains of the ankle joint are of a serious character and that it takes time for recovery, but will get well if no bones are crushed, and that there was no reason why plaintiff should not recover from the injury; that the character of rheumatism that plaintiff developed would retard his recovery from the injury; that after the injury the plaintiff had attended dancing parties in his neighborhood and had participated in the dancing.

Defendant put in evidence section 2071 of 1897, Iowa Code. The decisions of the Iowa Supreme Court in Malone v. R. R., 65 Iowa 417; Smith v. R. R., 59 Iowa 73; R. R. v. Foley, 64 Iowa 644, and Matson v. R. R., 68 Iowa 22.

For plaintiff the court gave the following instructions:

"By the term negligence used in these instructions, is meant the want of that degree of care that an ordinarily prudent person would have exercised under the same circumstances.

"The jury are instructed that 'ordinary care' as mentioned in these instructions, depends upon the circumstances and facts of each particular case or situation with reference to which the term is used. It is such care as a person of ordinary prudence and caution would usually exercise in the same situation and circumstances.

"The court instructs the jury that under the evidence in this cause John Mitchell is a minor, and that Thomas Mitchell was duly appointed the next friend of the said John Mitchell.

"The court instructs the jury that plaintiff had a right to assume that the car furnished for his use by the defendant was reasonably safe and sufficient for the purpose of handling steel rails, and it was not incumbent on plaintiff to search for hidden defects in said car, but it was the duty of the defendant to use reasonable care, diligence or caution to have said car in a reasonably safe condition for use.

"If you believe from the evidence that the car mentioned in the evidence and in the petition was, at the time it is alleged the plaintiff was injured, in a defective condition and not reasonably safe, and that the agents or servants of defendant, whose duty it was to furnish, inspect or repair such cars, knew or by the exercise of reasonable diligence might have known the condition of said car, then such knowledge is knowledge of defendant, and such neglect or failure to obtain such knowledge is the negligence or failure of defendant.

"The court instructs the jury that if you believe from the evidence that on or about the 18th day of August, 1899, John Mitchell, the plaintiff, was in the employ of defendant, and that while in the discharge of his duties as such employee he was, without carelessness on his part which contributed directly thereto, struck and injured by a rail falling from defendant's car because said car was weak, defective and not reasonably safe, then your verdict will be for plaintiff if you believe the weak, defective and unsafe condition of said car was unknown to plaintiff and could not have been known by ordinary care and caution on his part, and that said condition of said car was known to defendant or might have been known to defendant by reasonable diligence and inspection on its part.

"The court instructs the jury that it is the duty of defendant to supply its employees with cars in a reasonably safe condition, and it is the duty of said defendant in constructing its cars for the use of its employees to exercise ordinary care and skill in constructing the same, and in selecting the materials with which to construct and build said cars; and in this cause if you believe defendant failed or neglected to discharge these duties above specified, and in consequence of such neglect the car broke down and a rail on said car fell upon and injured the plaintiff while the said plaintiff was in the exercise of ordinary care, then the verdict will be for the plaintiff.

"The court instructs the jury that if you believe from the evidence that on or about the 19th day of August, 1899 plaintiff was in the employ of defendant and was ordered by the foreman of defendant to lift and place upon a truck or push car, used by defendant, a number of steel rails, and while so employed, and whilst said car...