Murphy v. Wabash R. Co.

• Citation: 115 Mo. 111,21 S.W. 862
• Parties: MURPHY v. WABASH R. CO.
• Decision Date: 13 March 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 862

115 Mo. 111

MURPHY v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

March 13, 1893.

MASTER AND SERVANT — SCOPE OF DUTY — NEGLIGENCE.

1. The question as to whether an engineer, who observes water running out of the tank of his engine, is in the line of his duty in taking a position on the outside of his cab, without stopping the train, for the purpose of correcting the defect in the machinery, is one for the jury, where there is evidence that other engineers were accustomed to act in the same way.

2. The question whether or not a railroad company is negligent in constructing its cattle-guard fences so near the track as to strike an engineer who, while in the line of his duty, takes a position on the outside of his cab, without stopping the train, to correct a defect in the machinery, is one for the jury; and the fact that all the company's cattle-guard fences are constructed in the same way will not warrant the court in disturbing the jury's findings that the company was negligent.

3. The engineer was not, as matter of law, guilty of contributory negligence in failing to stop the train, and then correcting the defect, where it appears that he had no knowledge of the proximity of the fence to the track.

4. The engineer, who had no knowledge of the proximity of the fence to the track, did not assume the risk arising from this fact, as this was a risk arising from the nonperformance of a duty which the law devolves on the master.

5. On the issue as to whether the engineer was guilty of contributory negligence in undertaking to correct the defect in the manner he did, without stopping the train, evidence is admissible to show that he knew that another train was three quarters of a mile behind him, and that he was expected to meet a third train at the next station, five or six miles away.

Appeal from circuit court, Randolph county; John A. Hockaday, Judge.

Action by S. D. Murphy against the Wabash Railroad Company for personal injuries sustained while in defendant's employ. There was a verdict in plaintiff's favor for $8,000, and, from a judgment thereon, defendant appeals. Affirmed.

F. W. Lehmann and Geo. S. Grover, for appellant. Alex. H. Waller, for respondent.

BLACK, C. J.

The plaintiff obtained judgment in the circuit court for personal injuries received by him while in the employ of the defendant in the capacity of an engineer. The substantial averments of the petition are that the defendant negligently erected and maintained a fence on its right of way so close to its track as to imperil the lives and limbs of its servants engaged in operating trains, by reason of all which he was struck and dragged from his engine. The errors assigned are (1) that there was no proof of negligence on the part of the defendant; (2) the evidence shows that the accident was due to the plaintiff's own negligence, and the court should have so declared; (3) the plaintiff assumed the risk of injury when he attempted to tighten the hose coupling; (4) the court should have excluded the evidence as to the movements of the other sections of the same train.

The first and second of these objections render it necessary to state the evidence with some detail. The accident occurred in May, 1890. The plaintiff was a sprightly man, 27 years of age. He had worked for defendant as fireman for three years. After that he worked for another road for two years. He again entered the service of the defendant as a locomotive engineer in January, 1890, and ran an engine from Moberly to points north and west of that place. For two weeks prior to the accident he had been engaged in running an engine from Moberly east to St. Louis and back, and had made two trips over that part of the road in daylight. On the day of the accident he had charge of a heavy engine, hauling the first section of a freight train. There were three sections of this train, two behind him. The plaintiff's section was composed of 17 loaded and 12 empty cars. The sections all left St. Louis for the west, and they were supposed to keep a mile apart. At the time of the accident the second section was only three quarters of a mile behind the first, and of this fact plaintiff had knowledge. He was within two or three miles of a station called Wright City, where he expected to pass a train going in the other direction, which had the right of way. At this juncture of affairs he saw water running out of the tank, occasioned, as he knew, by a loose nut which attached the hose to the water tank on the tender. It was through this hose that the engine boiler received its supply of water. The tank of the tender was built upon a heavy timber frame, and the loose nut was located at the bottom of the tank, and within this frame, and 22 inches from the outside of the tank. Instead of stopping the train to tighten the nut, he got a hammer, and took a position outside of the cab and tender. He grasped a hand hold at the lower part of the front end of the tender with one hand, placed his right foot on a step at and a little below the front end of the tank, and his left foot still lower down on the tender truck frame, and then swung his body around against the tank, and in this way was able to feel for and reach the nut with the hammer. He struck it twice, and succeeded in tightening it, so as to stop the waste of water. At this instant his hip struck a fence, and he was knocked off, Car wheels ran over his left arm, so that amputation became necessary. There was a road crossing at the place of the accident, and the plaintiff was struck by the east fence on the north side of the track. This fence extended up to a cattle guard. At the end of the fence there was a slanting, upright board. The evidence tends to show that this board was 30 inches from the rail at the bottom, and about 48 inches from a perpendicular to the rail at the top, thus leaving a space between the outside of the tender and the board of 6 or 8 inches at the bottom, and 16 or 18 inches at the top, of the fence. A witness who resided near to the place of the accident testified on cross-examination: "Question. The fence was, in general form, just such a fence as we have at cattle guards everywhere? Answer. Yes; I did not measure any cattle guards at the time of the accident. They all looked about the same, — all the cattle guards along the track, — being about the same slant and the same nearness to the track. Have been along up and down the track at different points for a few miles each way. It was a pine board fence." The evidence of the plaintiff is to the further effect that there were two hose connections between the boiler and the water tank; that one of them was out of repair, so that it could not be used; that it was the fastening of the one in use that worked loose; that he had but six or seven inches of water in the tank, and was six miles from a place where he could get a new supply of water; and that it was necessary to stop the waste to save the boiler. He says he had no knowledge as to how close the fences were to the track; that he had no idea they were close enough to hit him; that he looked forward, but could see nothing that appeared dangerous; that he was 250 yards from the crossing when he stepped down to tighten the nut; that he thinks he sounded the whistle for the road crossing; that he did not know exactly where the crossing was; that he thought he would do this work before he got to the crossing; that he knew there was a crossing up there at some place; and that, if he did know where the crossing was, he had no idea that the fence was close enough to drag him off. The defendant called several locomotive engineers, who gave evidence to the effect that the proper way to have tightened the nut, under the circumstances, was to whistle out flagmen, and stop the train. They had tried the experiment with this engine, and say a man could not tighten the nut as plaintiff did, and at the same time keep the body up against the tank; that some engineers, by reason of their build and short arms, could not do it at all in that way. One of them, the defendant's traveling engineer, says some engineers do things that others would not, and do them successfully; that he had tightened nuts when the engine was in motion, and would do it every time without stopping his train, if he could do it safely. Plaintiff testified in rebuttal that a wide-awake young man would never think of stopping his train between stations to tighten such a nut; that he had tightened nuts in a like place a number of times while the train was in motion; that he tightened this one before on the same day in the same way; and that careful and prudent engineers did the same thing.

1. The first inquiry is, was there evidence of negligence on the part of the defendant? The master is not bound to furnish absolutely safe appliances, for the law does not require that he must foresee and provide against all possible accidents. His duty to his servants is to use ordinary care in that respect. There can be no doubt but it is the duty of a railroad company to use reasonable and ordinary care in constructing and keeping its road in repair, and what is ordinary care depends much upon the dangers to be reasonably apprehended. A railroad company is in duty bound to place its signal posts, telegraph poles, cattle-guard fences, and other structures used in connection with the road at a safe distance from the track, to the end that they will not be dangerous to those engaged in operating its trains; for, considering the nature of the business, this is but ordinary care. It is not sufficient that such structures answer the purposes for which erected. In building them the safety of the servants in operating trains must be consulted. If it becomes necessary to place such structures so near to the track as to be dangerous to such operatives, then it is...