Roddy v. Missouri Pac. Ry. Co.

Citation15 S.W. 1112,104 Mo. 234
PartiesRODDY v. MISSOURI PAC. RY. CO.
Decision Date13 April 1891
CourtUnited States State Supreme Court of Missouri

Appeal from circuit court, Johnson county; CHARLES W. SLOAN, Judge.

H. S. Priess and Adams & Buckner, for appellant. S. P. Sparks, for respondent.

MACFARLANE, J.

This is an action for damages on account of serious personal injuries received by plaintiff by reason of alleged negligence on the part of defendant in furnishing a defective car which plaintiff was required to handle. The petition charges and the evidence shows that the main line of defendant's road between St. Louis and Kansas City passes through the town of Warrensburg, in Johnson county; that about three miles north-west of the town of Warrensburg are extensive stone quarries, owned and operated by one Pickle. Defendant owns and operates a branch railroad running out from Warrensburg to these quarries, which is used for transporting the stone taken from the quarries. From this branch road, at a point near the quarry, was a switch, which connected the road with another railroad track running into the quarry. This latter track was owned by Pickle, and was used for loading stone upon the cars. Cars intended for transportation of coal were brought out on this branch road, and were left standing on this quarry track, or convenient thereto, by defendant, and were then handled by Pickle until loaded, when they were carried out by defendant. Plaintiff at the time of his injury was in the employ of Pickle, working in the quarry, and had been so employed for about 13 years. At the time of his injury a part of his duty was to load stone into the cars by means of a derrick erected near the quarry and quarry track. After the empty cars had been placed on the quarry track they were managed, controlled, and, when necessary, moved to proper position for loading, by Pickle and the men in his employ. This duty of moving cars frequently devolved upon plaintiff. The grade to the quarry from the branch road was descending, and brakes were required to hold cars in position. Plaintiff testified, in substance, that on the 18th of June, Antoine Pickle, manager of the quarry, directed him to load a car with stone. Two flat-cars stood upon the quarry track, 50 or 60 feet from the derrick. He got upon the north car, nearest the derrick, and found the brakes set. He walked on top of the cars to the back end of the south car, and, as he supposed, set the brake tight on that one. He then uncoupled the cars, let the brake off the north one, sat on the end of the other, and with his feet put the north car in motion. He then got down on the ground between the cars, and with his hands — one on the draw-head, and the other on the end of the car — commenced pushing the car to the derrick. He had moved but a short distance when the south car struck him, crushing his arm, and causing permanent injury. It appeared from other evidence that while the brake, from what could be seen from the top of the car, and from what could be known from turning it, appeared to be in good condition, it was found that the rod connecting the brakes beneath the car was down, and the brake-shoe was in consequence too low to touch the wheel, and turning the brakes in the usual way did not set the shoe against the wheel. The brake was, in that condition, wholly useless. When the first car was moved out of the way, the second was set in motion by its own weight, and followed the first on the descending grade, and struck plaintiff as stated. The evidence showed further that the defect in this brake could have been easily detected by an examination beneath the car. Cars were frequently sent out with defective brakes. Plaintiff testified himself that "half the time they had no brakes on them." Pickle kept chains, which were used in making temporary repairs of the brakes, and this one could have been easily repaired with such chain. The superintendent of the quarry usually examined the cars, and notified the employes if any were defective. The contract between Pickle and the railroad company, if in writing, was not offered in evidence. From the testimony of Pickle, the superintendent, the arrangement between them was that defendant should furnish cars at the quarry when requested. The cars were left on the track near the quarry, and were handled at the quarry and loaded by the men employed and paid by Pickle. Defendant had no control over Pickle's men. After the cars were loaded they were billed from the quarry to their destination and charges for transportation were paid from the quarry. Defendant, when notified, received at the quarry, and carried off, the loaded cars. Defendant's answer was a general denial and plea of contributory negligence. Defendant offered no evidence, and asked no instruction except in the nature of a demurrer to the evidence, which was refused. At the request of the plaintiff the court gave to the jury the following instructions: "(1) The court instructs the jury that if you should find and believe from all the evidence in the case that at the time of the injury complained of by plaintiff he was engaged at work in the employment of one Pickle and in his interest, and that defendant had furnished cars to said Pickle to be loaded by him with stone belonging to said Pickle for transportation by defendant over its road for pay, on or about the 18th day of June, 1886; that of the cars so furnished by defendant there was one the brake of which needed repairing at the time the same was furnished, and for the want of such repairing was insufficient, with proper use and management, to fasten, manage, and control said car; and that defendant knew of the condition of the brake, or by the exercise of reasonable diligence could have known its condition, and that plaintiff did not know the condition of said brake until the happening of the injury complained of, and the defect in said brake was not patent to plaintiff, or such as would have been disclosed to him had he been ordinarily observant; and that plaintiff, while engaged in the service of said Pickle, loading another of defendant's cars, the car to which was fixed the brake being out of repair ran down and against plaintiff, whereby he was hurt, injured, and damaged; and that the injury occurred without the fault or negligence of plaintiff contributing thereto, — then your findings should be for plaintiff. (2) The court instructs the jury that if you should find and believe from all the evidence in the case that the defendant furnished cars to said Pickle to be by him loaded with stone at his quarries for transportation over its railroad, then it became and was the duty of the defendant to have furnished cars provided with appliances in such a state of repair as that the said Pickle and his employes could, with proper management and reasonable care and prudence, safely manage and control same while so engaged in said work. And if you should find that plaintiff, before the time of the alleged injury, did not know that defendant's cars were not in such condition or repair, he had a right to presume that defendant had done its duty, and that the appliances to said car were in such state of repair and condition as to safely manage and control said cars, with proper use and management, to do the work for which such appliances were designed, and to rely and act upon such presumption." "(4) The court further instructs the jury, if you should find and believe from the evidence in the case that the plaintiff did not know of the alleged condition of the brake referred to in the testimony, until after the happening to him of the injury referred to in testimony, and that the condition of said brake would not have been observed by him by the exercise of ordinary and reasonable prudence and observation on his part, it was not incumbent on plaintiff to search for and examine for defects in its condition not so observable, but that he had the right to assume that such brake was in a suitable and safe condition as to its being repaired; that it would, with proper management, do the work for which it was designed." The jury found for plaintiff, and assessed his damages at $6,000. Defendant appealed.

The action is for negligence. It is charged in the petition "that it was the duty of said defendant to furnish cars to said Pickle, properly constructed, and provided with suitable and safe brakes, properly constructed and sufficiently repaired, and in condition to manage, hold, control, and stop its said cars; but plaintiff charges that the said defendant, by its carelessness and negligence, failed to furnish cars so properly...

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