Montgomery v. Chicago, Great Western Railway Company
| Decision Date | 07 November 1904 |
| Citation | 83 S.W. 66,109 Mo.App. 88 |
| Parties | JAMES R. MONTGOMERY, Appellant, v. CHICAGO, GREAT WESTERN RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.
AFFIRMED.
Cause affirmed.
John George Parkinson for appellant.
(1) The master is bound to use ordinary care in providing and maintaining a reasonably safe place in which the servant may do his work. Barrows on Negligence, p. 90; Scott v Springfield, 81 Mo.App. 312; Devore v. Railway, 86 Mo.App. 429; Minnier v. Railway, 167 Mo. 99; Cardwell v. Railroad, 90 Mo.App. 31; Herbert v Boot & Shoe Co., 90 Mo.App. 305; Nash v Dowling, 93 Mo.App. 156; Zellers v. Water & Light Co., 92 Mo.App. 107. (2) The mere knowledge of the master's negligence and that a risk is to be incurred by the servant, is not as a matter of law sufficient to defeat the servant's action, unless the danger is imminent and the work could not be done by ordinary care without impending injury. See citations under point I, 93 Mo.App. 209. (3) It is the duty of the master to inspect and repair and keep in suitable condition the place of work, instrument and appliances for the servant. Barrows on Negligence, p. 55; Zellers v. Water & Light Co., 92 Mo.App. 107.
James C. Davis for respondent.
(1) No evidence was introduced on the trial of the case in the court below as to the cause of the accident which occasioned appellant's injuries. The negligent act of the master must be established and the burden of establishing it is on the servant. Smith v. Railway, 113 Mo. 70; O'Mallry v. Railway, 113 Mo. 319; Dowell v Guthrie, 99 Mo. 653; Dowell v. Guthrie, 116 Mo. 646; Murray v. Railway, 101 Mo. 236. (2) If appellant had taken up his position on the stirrup and maintained himself at that point by use of the handhold provided for that purpose he would not have been injured. This he expressly admits. Where there are two ways in which a given act may be performed, and the person engaged in the performance of the act voluntarily selects the dangerous way, when a safer one is apparent to him, and he is thereby injured, he is guilty of contributory negligence. Moore v. Railway, 146 Mo. 572. (3) Where a servant has knowledge of the defective condition of a given appliance and the danger attending its use, and yet with such knowledge continues in the use of such appliance, he will be held to have assumed the risk of any injury resulting to him therefrom, in an action by him against the master based thereon. Epperson v. Postal Tel. Co., 155 Mo. 346; Thompson v. Railway, 86 Mo.App. 341; Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 541; Marshall v. Hay Press Co., 69 Mo.App. 256; Halloran v. Foundry Co., 133 Mo. 470.
Plaintiff sued for damages which he claims he sustained as the result of an injury caused by the negligence of defendant. The evidence disclosed that he was a switchman in defendant's employ at the time of the injury which occurred in its switch yards at St. Joseph, Missouri.
On July 21, 1900, at about ten o'clock at night an engine to which was attached several freight cars stood on defendant's main track headed north ready to be switched south and onto a side track. Plaintiff was stationed at the south end of the train to which was attached a box car. His duty was to throw the switch so as to enable the train to pass from the main to the side track and to give the engineer in charge of the engine the signal when the switch was open. He threw the switch, gave the signal and stepped on the brake beam and grasped the handhold on the south end of the rear car. After the train had moved backwards some several car lengths a sudden jar caused plaintiff's foot to slip from the beam to the rail of the track where it was caught and crushed by the wheels of the car. Amputation became necessary as a result of the injury.
Plaintiff was an experienced brakeman. He alone testified as to the facts of the case, stating that at the place where he fell the track had been loose and in bad condition for some time prior to the time in question; that in about eight days thereafter he went to the place where he had fallen and found that the point of the frog of the rail had broken off; that he had found this point in the dirt and sand, compared it with the end of the rail and that it fitted to it exactly. He further stated that the blunt point of the rail would jar a car when the wheels passed over it. It was also shown by plaintiff's evidence and a photograph used at the trial that at the north end, but on the side of said car, there was also a handhold and a stirrup for the foot. In answer to a question asked him by defendant's attorney as to why he did not cling to the car at the latter place he said that he did not have any business there, and that owing to a curve in the track the engineer could not have seen his signals from that point. He finally admitted, however, that the engineer could have seen his signals just as well from one position as from the other. He stated, too, the positions were equally dangerous, but in the end admitted that had he been on the stirrup at the side at the north end he would not have been injured. And he assigned as an excuse for getting on the rear end of the car the darkness which would have prevented him from seeing cars on the track behind that he did not want the train to strike.
On the day after his injury plaintiff made certain statements in answer to questions put to him, as follows:
Plaintiff introduced one witness besides himself whose testimony was to the effect that plaintiff was in his proper place when he was injured. The testimony disclosed that the business of a switchman is of a very hazardous nature.
The defense was that plaintiff had assumed the risk of his employment and that negligence on his part had directly contributed to his injury. The court upon the proof instructed the jury to find for defendant and plaintiff appealed.
The defendant contends that the case is within the rule of law that: "One fully capable of selecting and contracting for himself, who...
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