Near v. St. Louis & S. F. R. Co.

• Decision Date: 14 July 1914
• Docket Number: No. 16484.,16484.
• Court: Missouri Supreme Court
• Parties: NEAR v. ST. LOUIS & S. F. R. CO.

168 S.W. 1186

261 Mo. 80

NEAR v. ST. LOUIS & S. F. R. CO.

No. 16484.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. TRIAL (§ 156) — EVIDENCE — DEMURRER TO EVIDENCE.

The rule that the court, on demurrer to plaintiff's evidence, must take it as true, if not impossible or opposed to the physical facts, or beyond reason, and give him the benefit of every reasonable inference of fact arising on all the proof, does not relieve plaintiff of the necessity of producing substantial testimony to prove the issues, and a mere scintilla of evidence is insufficient.

2. MASTER AND SERVANT (§ 106) — INJURY TO SERVANT — NEGLIGENCE.

A railroad company, receiving a freight car of another company, owes to its employés, who are to handle the car, the duty of exercising ordinary care to discover defects in the car and equipment, and where it fails so to do it is liable for injuries caused by defects discoverable by the exercise of ordinary care.

3. MASTER AND SERVANT (§ 124) — INJURY TO SERVANT — NEGLIGENCE.

A railroad company, receiving a freight car of another company, is not required, in the exercise of ordinary care in the inspection of the car for defects, to remove the brake wheel and make a detailed inspection of the brake staff, in the absence of any showing that defects in the staff not otherwise discoverable are of frequent occurrence, and where the evidence shows that such defects are unusual, and that usual inspection and tests of brakes merely call for a twisting of them to see that the chains and everything are in working order.

4. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — BURDEN OF PROOF.

An employé, suing for a personal injury caused by a defective appliance furnished him, has the burden of proving the negligence alleged, and his duty to furnish proof cannot be aided by conjecture.

Faris, J., dissenting in part.

Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge.

Action by George B. Near against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is a suit to recover damages for personal injuries. Plaintiff recovered judgment in the sum of $15,000 in the circuit court of Jackson county, Mo., and defendant appealed. That portion of the petition containing the charge of negligence was as follows:

"The defendant did negligently deliver to and cause the plaintiff to work as such switchman upon a certain freight car, not owned by defendant, and negligently failed to properly inspect the same before causing plaintiff to work on same, which said car was worn, defective, and out of repair in this, that there was upon the said car a certain hand brake, consisting substantially of a wheel revolving upon a shaft or staff, for the purpose of tightening brakes on said car, the said shaft or crank of which was and had for a long time theretofore been worn, defective, and out of repair, cracked, and broken, and but a very small and insufficient portion thereof remained intact, and same was not sufficiently strong to resist the application of a reasonable and proper amount of power used upon said wheel for the purpose of setting such brakes, all of which was unknown to the plaintiff, but was or could, by the exercise of due care, have been known to the defendant."

The evidence on the part of plaintiff tended to show the following facts:

At the time of receiving the injuries, plaintiff was an employé of defendant company, in the capacity of field switchman, in the company's switchyards in Kansas City, Mo. His hours of work were in the nighttime. The duty of the switch crew, with which plaintiff was working, was to switch freight cars from the connecting lines onto the proper tracks of the defendant's switchyards. The cars from the connecting lines would be attached to an engine of the defendant company and moved into the defendant's switchyards, and plaintiff, acting as field switchman, would throw the respective switches so as to shunt the respective cars upon their proper switch track destination; and in doing this it sometimes became necessary for plaintiff, after letting a car into the switch track, to climb upon the same and stop it by setting the brakes on the car. Plaintiff was injured about 2 a. m., and on the night in question the switch engine and switch crew with which plaintiff worked took a "drag" of cars (including one box car of the Pennsylvania Railroad, which was the car that injured plaintiff) from the connecting tracks of the Chicago, Milwaukee & St. Paul Railroad to the defendant's yards for the purpose of shunting the respective cars of said "drag" into the proper switch destination. It was intended that the Pennsylvania car should be placed on switch track No. 26, but on account of some mistake, not important to the present controversy, plaintiff opened the switch to track No. 27, and the Pennsylvania car was shunted into that switch track. After the car came upon that switch track, plaintiff climbed upon the forward end of said car for the purpose of riding the car down the switch and stopping it at its proper place by setting the brake on the car. This car was equipped with what is known as a "tunnel brake." The tunnel brake is attached to the car in the following manner: The brake staff, being a piece of iron about 1½ inch in diameter, is attached to the end of the car on the outside of the car, approximately 5 feet above the bottom of the car, and projects out from the car a distance of 8 or 10 inches. On the outer end of this brake staff the brake wheel, 22 inches in diameter, is located; the end of the brake staff being square, so as to fit into a square socket in the wheel. The ratchet wheel is attached to this brake staff near the place where the staff enters the end of the car. The brake staff is supported at the outer end by an iron brace or bracket, which comes out from the body of the car and encircles the brake staff near the place where it enters the socket of the brake wheel. The brake chain is attached to the brake staff at some point between the ratchet wheel and the brace. The end beams at the bottom of the box car extend out a distance of approximately 18 inches, which furnishes a platform upon which the person operating the brake may stand.

On the night in question, after plaintiff had climbed on the front end of the moving car, he first tested the brake to see if it was working properly. This was done by turning the brake wheel so that the slack was taken out of the chain, and turning the brake until he heard the brake shoes catch on the wheels. That it "sounded all right" and that thereafter the car progressed about three car lengths, and up near the place where plaintiff desired to stop the car, and then plaintiff commenced to set the brake. While in the act of setting the brake, the brake staff broke in two, allowing the brake wheel to drop off, thereby causing the plaintiff to lose his balance and fall in the middle of the track in front of the moving car. The car continued down the track and over plaintiff. At the time of the accident plaintiff was about 40 years old, in good health, weighing about 205 pounds. Some of the bones in his left foot were broken or thrown out of place, his right leg was broken between the knee and the hip, and his right foot was injured. After the car stopped, plaintiff crawled out from under the car and called for help. Describing his injuries at that time, plaintiff says: "I was bruised all over. I had pains all over." He was then taken to the hospital and given treatment. At the time of the trial, which occurred about a year and a half after plaintiff was injured, he weighed about 185 pounds and was unable to walk without the aid of crutches. His right ankle was stiff and his left ankle was very nearly stiff; the bones in both ankles being affected with ankylosis. The muscles of the right leg were somewhat atrophied and the right leg was partly paralyzed. He testified that he could not walk without the aid of crutches, and that he had been unable to do any work since the accident, and the doctor testified that his injuries were permanent. Plaintiff's evidence further tended to show that the brake staff broke near the place where it goes into the socket of the brake wheel; that the break was irregular, starting at a distance of from one-sixteenth to one-fourth of an inch from the brake wheel, and extending in an irregular manner a similar distance down into the square portion of the brake staff, which was covered by the socket of the brake wheel. Mr. Munson, who was the foreman of the switching crew with which plaintiff was working on the night of the injury, heard plaintiff call for help and went down to where plaintiff was lying on the ground. This witness picked up the brake wheel and examined the place where the staff had broken, and said that the cross-section of the portion of the broken staff which had remained in the brake wheel showed that about two-thirds of the break was an old break and the remainder appeared to be a fresh break; that the old break extended to about two-thirds of the circumference of the staff; that the broken portion of the staff projected about one-sixteenth of an inch from the socket of the brake wheel on one edge of the socket, and that the fresh portion of the break was down in the socket. Claud M. Donahue was working for the defendant company as a switchman in another part of its yards at the time plaintiff was injured, and was present when Mr. Munson examined the brake wheel containing a portion of the broken staff. This witness said that about one-third of the break appeared to be an old break and the rest of the break was bright, appearing to be a new break; that a portion of the brake staff, where the cross-section showed the old break, protruded out of the brake wheel socket about one-fourth of an inch; that "it was broke angling, like you would break a stick or anything; there was...