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

• Decision Date: 12 March 1895
• Court: Missouri Supreme Court
• Parties: SETTLE v. ST. LOUIS & S. F. R. CO.

30 S.W. 125

127 Mo. 336

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

Supreme Court of Missouri, Division No. 1.

March 12, 1895.

INJURY TO EMPLOYE — DEFECTIVE APPLIANCES — PROXIMATE CAUSE — CONTRIBUTORY NEGLIGENCE.

1. A railroad company is bound to furnish and keep in repair proper handholds on the ends of box cars for the support of brakemen, and it is negligence to send out a car the handhold on which is so bent that it can only be grasped at the ends.

2. Deceased was a young man; and, in order to make a "running switch," grasped the handhold on the end of the car with one hand, and with the other pulled the coupling pin. In trying to raise himself to an upright position, his feet slipped from the rod on which he was standing, and, after swinging by his hands from the handhold for a short time, he fell, and received injuries causing his death. The handhold was bent against the car, so that it could not be grasped for about six inches in the center. Held, that the jury could infer from the evidence that the defective condition of the handhold was the proximate cause of the injuries.

3. The duty of a railroad company to keep the appliances used by its servants in repair is a continuing one, and its servants do not assume risks incident to its failure to repair by continuing in its employ with knowledge of the defects.

Appeal from circuit court, Lawrence county; W. M. Robinson, Judge.

Action by Nancy Settle against the St. Louis & San Francisco Railroad Company for the death of plaintiff's husband. From an order setting aside a verdict for defendant, and granting a new trial, defendant appeals. Affirmed.

E. D. Kenna, L. F. Parker, and H. S. Abbott, for appellant. Cloud & Davies, for respondent.

MACFARLANE, J.

Plaintiff sues under the provisions of the laws of the state of Kansas for the death of her husband. William F. Settle, which occurred in said state in January, 1892, while in the employment of defendant as a brakeman. The petition contains three counts, which do not differ materially in their averments of negligence. The charge of negligence is that the handhold, on the end of one of defendant's cars, which was provided for the use of plaintiff and other brakemen, was permitted "to get out of repair and in dangerous condition, having been mashed in so it could not be readily grasped with the hand, and that by reason thereof, while deceased was performing his duties, he lost his hold, and fell from the car, and was run over, receiving injuries from which he died. The answer was a general denial. At the close of the evidence offered by plaintiff, the court directed a verdict for defendant. This verdict the court afterwards set aside, on motion of plaintiff, and granted a new trial, and from this order defendant appealed. The only question to determine, therefore, is whether there was evidence of negligence, and the resulting death therefrom, which should have been submitted to the jury. If there was, then the new trial was properly granted; if not, then judgment should be entered upon the verdict for defendant. Plaintiff's husband was rear brakeman on one of defendant's trains, and at the time had charge of switching some cars, the conductor being temporarily absent. The work immediately in hand was to take a car from one track, and place it upon another. This deceased undertook to do by making what is known as a "running switch." To do this, it was necessary to couple the car to the engine, and pull it towards the switch, to uncouple it from the engine, and, after the engine had passed, to turn the switch, and let the car go in on the side track. This operation required the car to be uncoupled from the engine while they were in rapid motion. This was a box car, and had on the end, and near the corner, a foothold for brakemen to stand upon. This was fixed near the bottom of the car. About three feet ten inches above this was a handhold. These were similarly constructed, and consisted of an iron rod about one inch in diameter, bent at the ends, and fastened to the car with bolts. The holds were about eighteen inches long, and, when in proper condition, stood out from the car two or three inches. These holds were used in uncoupling cars while in motion. On the sides of the car, near the end, were similar holds, one above the other, making a ladder by means of which trainmen could go up and down the car. The handhold on the end of this car was bent or mashed in at the center, to within an inch or less of the car, leaving, however, a sufficient hold of five or six inches at each end. Plaintiff's husband undertook to handle the cars in making this running switch. The car was coupled to the engine, and was run towards the switch. Deceased, being at the time on top of the car, went down the ladder, reached round the corner, took hold of the end handhold, and swung round the corner of the car, placing his feet upon the footrest at the bottom. When the proper momentum had been obtained, and the proper distance from the switch had been reached, he held with his left hand, standing with his feet on the hold at the bottom of the car, and reached down and drew the coupling pin, thereby uncoupling the car from the engine. The engine was then run forward, leaving the car to follow to the switch. Deceased was seen to assume these positions and make these movements. As soon as the engine pulled away from the car, deceased was seen, in an erect position, hanging to the handhold, his feet having slipped off the hold upon which he standing. After hanging in that position for a moment, his hand gave way, and he fell upon the track, and the car ran over him, causing his death. The engineer testified: "I had started ahead, and increased the speed of the engine, and got something like thirty feet from the car when I saw him drop down. He sort of dropped a little ways and then retained himself for an instant, and then went down." Worthington, telegraph operator, testified: "As they made the flying switch, I saw the engine leave the car. I saw him hanging by his hands before his handhold loosened. His feet had slipped from the foothold. He was holding by his hands, and held himself there for a moment. * * * I think he held with both hands. * * * He was upright, holding by his hands. His feet were...