Moore v. Kansas City, Ft. S. & M. Ry. Co.

• Citation: 48 S.W. 487,146 Mo. 572
• Court: United States State Supreme Court of Missouri
• Decision Date: 08 December 1898
• Parties: MOORE v. KANSAS CITY, FT. S. & M. RY. CO.

48 S.W. 487

146 Mo. 572

MOORE v. KANSAS CITY, FT. S. & M. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 8, 1898.

MASTER AND SERVANT — COUPLING CARS — CONTRIBUTORY NEGLIGENCE.

An experienced brakeman, injured while attempting to couple cars, the drawheads of which were of unequal height, with a straight link, the only kind furnished by the company, was guilty of contributory negligence, where he put one end of the link in the higher drawhead, and attempted with his hand to force the other end down to the lower drawhead as the cars came together after the moving car ahead had rebounded; the usual and a safe method being to put one end of the link in the higher drawhead, and prop up the lower drawhead, and the fact that he had no time to prop the drawhead before the car came back the second time being no excuse for his not waiting for another movement of the cars.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Action by W. W. Moore against the Kansas City, Ft. Scott & Memphis Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Plaintiff sues for damages on account of a personal injury received while in defendant's employ as a switchman. The facts upon which he predicates the liability of the railway company are these: It was plaintiff's duty under his employment to couple together the cars in making up freight trains in its yards at Springfield. He was engaged in so doing on the 12th of January, 1895, when it became necessary for him to make a coupling between two cars, the drawheads of which were of unequal height. Defendant failed to furnish crooked links for that purpose, and plaintiff was compelled to use a straight link. This was the only kind provided. The failure to supply crooked links for use upon such occasions is the negligence counted upon in the petition. It is claimed that a straight link is unsuitable, and not reasonably safe for a switchman to use, when the drawheads are not of the same height. At the time plaintiff was hurt, 11 or 12 cars had been placed in the train, and were standing upon the main track. Another car was brought up, and placed in such position that it would run downgrade to the stationary cars above mentioned, to which it was to be attached. It was then' cut loose from the engine and ran down to the other cars. The drawhead of the moving car was lower than that of the one standing still. The link was in the lower drawhead, and, as the cars came together the first time, plaintiff tried to make the coupling by raising the link so that it would connect with the higher drawhead of the other car. He failed in this attempt, and says that, when the moving car struck those standing on the track, it "bounced back," but he could not tell how far. He afterwards changed the link to the higher drawhead. The other car was then hit by one set in by the engine on the same track, and began again to move towards those composing the train. Plaintiff, as they came together the second time, made another effort to effect the coupling. He attempted with his right hand to force the link down to the lower drawhead, but failed, and his hand was caught and badly mashed, and amputation of several of his fingers became necessary. The evidence showed that plaintiff was 32 years old, and was an experienced switchman. He had been railroading for a number of years, and had been in defendant's employ probably 10 years or more. It further appeared that defendant had never furnished its employés with crooked links to make such couplings. Plaintiff testified that he could have raised the lower drawhead, and propped it up, and in that way have made the coupling without placing his hand in the dangerous position where it was hurt, if he had had time to do so between the movements of the car. He says he did not do this for want of time; that, as the cars were coming together, it would have been more dangerous for him to have gone between them to raise the lower drawhead than to do as he did. The evidence does not disclose any reason why he might not have waited until he could make the coupling in a proper and safe way. The testimony does not show that he was required to make it when the cars came together the second time. J. M. Daly, a witness for plaintiff, testified on cross-examination as follows: "Q. I understand you to say that a proper way to make a coupling of cars having drawheads of different heights is to put the link in the higher drawhead, and to prop up the lower drawhead with anything the switchman may be able to pick up around the yard as a chip, cinder, stone, or anything? A. Yes, sir; very often use a link or a pin. * * * Q. Is it not common among experienced switchmen, and considered reasonably safe by them, where they come to couple cars having drawheads of unequal height, to simply prop up the drawhead in the way you have before indicated, and there insert the common straight link in the higher drawhead, and allow the cars to come together in that way? A. Yes, sir; it is common where the engine has hold of the cars, and stop the cars, and there is time. Q. Suppose that the engine has not hold of the cars, but that it has been kicked back for the purpose of being coupled to a car having a low drawhead, and this is discovered by the switchman, and he declines to try to effect the coupling when the cars first come together, but waits for the rebound, will not an experienced brakeman in such case go along, and prop up the lower drawhead, and wait for the next movement of the car to make the coupling? A. Yes, if he has room to do it. Q. And, in such case such a coupling would be easily effected in that way,...