Shepard v. Schaff

• Decision Date: 22 May 1922
• Docket Number: No. 21786.,21786.
• Parties: SHEPARD v. SCHAFF
• Court: Missouri Supreme Court

241 S.W. 431

SHEPARD v. SCHAFF

No. 21786.

Supreme Court of Missouri, In Banc.

May 22, 1922.

Appeal from Circuit Court, Jackson County; Willard F. Hall, Judge.

Action by Jose Rosales, revived in the name of James J. Shepard, his administrator, against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and, from an order granting plaintiff's motion for a new trial, defendant appeals. Order reversed, with directions to enter judgment for defendant.

J. W. Jamison, of St. Louis, and Cooper, Neel & Wright and J. Stanley Bassett, all of Kansas City, for appellant.

C. W. Prince, E. C. Hamilton, E. A. Harris, and J. N. Berry, all of Kansas City, for respondent.

SMALL, C.

This case was originally brought by Jose Rosales, an employee of defendant, for personal injuries sustained in being thrown from a hand car which left the track while plaintiff was riding thereon. The plaintiff was employed as a track laborer upon defendant's tracks used in interstate commerce. The charge of negligence in the petition was: "That the negligence of defendant consisted in providing and ordering plaintiff to ride on a hand car, the mechanism of which was so defective as to cause the same to wobble and jump the track"; that such defective condition was known to defendant, but, notwithstanding such knowledge, defendant negligently assured plaintiff that said hand car was safe, upon plaintiff's protest that it was not safe. By reason whereof plaintiff was damaged in the sum of $15,000, for which he prayed judgment. The answer was: First, a general denial; second, contributory negligence; third, assumption of risk. The reply traversed the new matter of the answer.

The evidence was conflicting on the material issues. The court instructed the jury as follows, for the plaintiff:

The court instructs the jury that if you find and believe from the evidence that on the 18th day of September, 1917, the plaintiff was in the employ of the defendant, and if you further find and believe from the evidence that on said day the defendant provided a certain hand car for the transportation of the plaintiff with other workmen to and from their place of work, and if you further find and believe from the evidence that the plaintiff was ordered and directed to board said hand car for the purpose of being transported over defendant's railroad to a camp maintained for the purpose of boarding and lodging plaintiff and his fellow workmen, and that while being so transported said hand car jumped the rails of said track, if you so find, and provided you further find that the mechanism of said hand car was so defective as to directly cause the same to wobble and jump the track, and that said condition was known to defendant, and that defendant negligently ordered plaintiff to ride on said hand car at the time and place in question, and negligently assured plaintiff that same was reasonably safe, and that as a direct result thereof plaintiff was injured, if you so find, and if you further believe from the evidence that the plaintiff and defendant were at the time and place in question engaged in interstate commerce, as explained in other instructions, and if you further find from the evidence that plaintiff did not know at the time he went on said hand car its defective condition aforesaid, if any, and appreciate the danger incident thereto, then your verdict must be for the plaintiff and against the defendant.

The court also gave the following instruction of its own motion (to which plaintiff excepted):

"Plaintiff complains that the mechanism of the hand car furnished to him for his use, and which he was using at the time he was injured, was so defective as to cause said hand car to wobble and jump the track, and in consequence thereof was dangerous and unsafe for him, and that by reason of said defective condition, said hand car jumped the track, and sent him to the ground beneath the railroad track, injuring him. In order for you to find for plaintiff you must be satisfied from the evidence that said hand car was defective, as above stated, and that by reason thereof and in the manner stated above plaintiff was thrown to the ground by the derailing of said hand car and injured. And unless you are thus satisfied from the evidence, you must find for defendant...