Ogan v. Missouri Pac. Ry. Co.

• Citation: 142 Mo. App. 248,126 S.W. 191
• Parties: OGAN v. MISSOURI PAC. RY. CO.
• Decision Date: 21 February 1910
• Court: Missouri Court of Appeals

126 S.W. 191

142 Mo. App. 248

OGAN v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

February 21, 1910.

Rehearing Denied March 5, 1910.

1. MASTER AND SERVANT (§§ 101, 102) — MASTER'S LIABILITY — LIABILITY AS INSURER.

A master is not an insurer of a servant's safety, being only required to exercise reasonable care to furnish a reasonably safe place of work and reasonably safe appliances and tools.

2. MASTER AND SERVANT (§§ 101, 102) — MASTER'S DUTY — APPLIANCES.

The master's duty to exercise reasonable care to furnish reasonably safe tools and appliances is a continuing duty, depending largely upon the character of the work; greater care being required when the natural dangers from the work are great than when they are slight.

3. MASTER AND SERVANT (§ 125) — MASTER'S DUTY — APPLIANCES — REPLACING UNSAFE APPLIANCES.

A railroad company was bound to know that in the course of time guy chains of a hoisting derrick boom would become unsafe from wear and natural causes, and would be negligent if it waited for them to break before strengthening or replacing them.

4. MASTER AND SERVANT (§ 124) — MASTER'S DUTY — APPLIANCES — INSPECTION.

An employer would be negligent for failure to inspect an appliance where it had been a part of his plant for such a time that, considering the nature of the material and the work it was used in, as well as its liability to deteriorate from exposure from the weather, a prudent man would have examined it to determine what its actual condition was.

5. MASTER AND SERVANT (§ 278) — INJURIES — SUFFICIENCY OF EVIDENCE — NEGLIGENCE.

In an action for the death of a wrecking train employé by being caught under a derrick car which was upset when one of the boom guy chains broke, evidence held to sustain a finding of negligence by defendant in continuing to use the guy chain without reasonable tests to determine its condition.

6. DEATH (§ 69) — ACTIONS — ADMISSION OF EVIDENCE.

In a widow's action for damages for her husband's negligent death, plaintiff could testify as to the number and ages of her minor children.

7. TRIAL (§ 191) — INSTRUCTIONS — ASSUMING FACTS.

In an action for a wrecking train employés death, an instruction that if decedent was in defendant's employ as boom man on the derrick, and while discharging his duties one of the guy chains on the derrick broke because old and defective, causing the car to turn over and catch decedent beneath it, and if the chain at that time was old and defective, and such breaking was caused by its age and defects, and such condition was unknown to decedent, etc., but was known to defendant, the jury should find for plaintiff, was not erroneous as assuming that the guy chain was unsafe.

8. TRIAL (§ 256) — INSTRUCTIONS — DUTY TO REQUEST.

In a widow's action for the negligent death of her husband, the court instructed for plaintiff that upon finding for her the jury should assess her damages at such sum, not exceeding $5,000, as they deemed fair and just under the evidence, with reference to the necessary injuries to plaintiff from her husband's death. Defendant did not ask an instruction on the measure of damages. Held, that the instruction was not erroneous for not requiring the jury to consider the "mitigating and aggravating circumstances"

as provided by statute in such cases, and was unobjectionable.

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

Action by Lizzie Ogan against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Elijah Robinson, for appellant. L. A. Laughlin, for respondent.

JOHNSON, J.

This action is prosecuted by a widow to recover damages for the death of her husband which, she alleges, was caused by the negligence of defendant. The cause is here on appeal from a judgment for $5,000 rendered against defendant in the trial court.

The husband of plaintiff, Robert D. Ogan, was killed April 28, 1907, near Lexington. He was in the service of defendant at the time and was a member of a wrecking crew of which his brother Andrew J. Ogan was foreman. An engine and some coal cars had been derailed on a spur track leading to a mine, and the wrecking crew and train were engaged in replacing them on the track. The engine had been replaced and removed from the scene, and the efforts of the crew then were directed to one of the coal cars which, at the time of its derailment, was loaded with coal. The derrick car was run alongside and anchored to the track to hold it in place. The derrick picked up the coal car, swung it across the track to dump out the load and then was proceeding to set it on the track when a jar, occasioned by the striking of the suspended car against the track or embankment, caused one of the boom guy chains to break. The boom, released from the position in which the chain held it, swung around and upset the derrick car, despite its anchorage. Ogan, whose station was on the car, was caught in the fall and pinned under the car. The derrick, built on a flat car, consisted in part of a mast about 10 feet high, a boom 36 feet long, a hoisting cable of rope operated by power from the locomotive, and two guy chains employed to hold the boom in position. Each of these chains was 23 feet long and was composed of wrought iron links 3 inches long and 7/8 of an inch thick. The chain which broke had been in use about four years and had been constantly exposed to the weather. One of the links snapped in two, whizzed off and became lost. The load being lifted was not heavy for the derrick, and we do not agree with defendant in the view that the jar and consequent strain on the derrick produced by the bumping of the load against the track was unusual. The evidence shows this occurrence was not out of the ordinary. It appears that some three weeks before the event in question, another link of the chain broke while the derrick was in use. The chain was repaired immediately and restored to...