Shunk v. Harvey
| Decision Date | 19 July 1920 |
| Docket Number | No. 21221.,21221. |
| Citation | 223 S.W. 1066,284 Mo. 343 |
| Parties | SHUNK v. HARVEY et al. |
| Court | Missouri Supreme Court |
Wilkinson, Wilkinson & Dabbs, of Kansas City, for plaintiff in error.
Cooper, Neel & Wright, of Kansas City, for defendants in error.
This plaintiff lost his left foot in consequence of the wheels of a car passing over it—a car which belonged to the defendant Kansas City, Clay County & St. Joseph Railway Company, but operated on the day of the accident, March 15, 1916, by the defendants J. G. L. Harvey and Ingraham D. Hook, as the receivers of said railway company. The receivers have since been discharged and the railway properties turned back to the company, which assumed all pending liabilities incurred while the property was in the hands of the receivers, whether contractual or in tort. Plaintiff was the conductor in charge of a construction train, consisting of an electric motor car, or engine, a flat car, called a "ditcher," which carried a crane that raised and lowered a large scoop or shovel used to scrape up dirt, and a dump car, known as the Oliver air dump car, into which, as we understand, the dirt was spilled. A platform extended across each end of the dump car, and possibly 3 feet below the top edge of the body of it, and about 4½ feet above the ground or railway track. This platform was a board, say three-quarters of an inch thick and a foot wide. From either end of it hung an iron ladder of two steps, of which the lower one was a little over 2 feet from the surface of the railway bed. The photographs which accompany the abstract of defendants show the arrangement of the dump car, the platform, and ladders, and they are reproduced to aid the reader to understand the facts of the case.
According to the testimony the platform as constructed, and as it was when the car was purchased by the railway company, extended out flush with the sides of the body of the dump car; but, when the train was at work, the chain by which the shovel was lifted would catch upon the ladders as the shovel was hauled up by the crane, and to correct this interference the railway company cut 8 inches off each end of the plat form, thereby bringing the ends of it, and the ladders fastened to the ends, inside the outer sides of the car. It is charged and contended that this alteration rendered the ladders unsafe appliances for the use of employés who might have occasion to mount them.
About 10:30 o'clock in the morning of March 15, 1916, the construction train and its crew were occupied on the part of the line of the defendant company north of Kansas City known as "Rattlesnake Curve," which is described as a sharp curve, where a keen lookout for trains should be kept. A passenger train going north being about due at said hour, the construction train was run on a switch or siding to let the passenger train pass, and so was a car known as a "line car," used by employés called "linemen" and propelled by its own motor. After the passenger train had gone by, the "line car" left the siding first, moving northward onto the main track, and plaintiff went with it ahead of his own train, apparently to give signals to the latter train, so it would not run into the "line car." The plaintiff soon dismounted and stood by the track, to wait for the construction train, which was 600 yards behind. As it approached he signaled the engineer to slow down, the signal was obeyed, and the train drew up to plaintiff at the speed of about 6 miles an hour; the dump car in front, the "ditcher" next, and the motor car pushing in the rear. Just as the ladder on the east side of the dump car was opposite plaintiff, who was standing on the ground east of the railway track, he took hold of the handhold and had placed his left foot on the lower rung or stirrup, and had lifted his other foot off, or almost off, the ground, when a lurch of the car caused his left foot to slip off the stirrup and onto the rail below, where the wheels of the front truck of the dump car passed over it and crushed it so badly that amputation was necessary. It should be stated that the ladder from which plaintiff slipped had been bent in 2 inches or so at the bottom, and hung that far out of a perpendicular line. We copy from the petition:
"Said defendants, disregarding their duty, negligently and carelessly placed in the train on which plaintiff was engaged to perform services as such conductor a dump car of the type above described, having an unsafe and defective running board and ladder, in this: That said running board, instead of extending out almost even with the bed or box of the car as originally designed and constructed, had been altered by said defendants, their agents, servants, and employés, by having been negligently and carelessly sawed off or cut off, so that said running board was several inches shorter than it was as originally constructed, and that this caused each end thereof to be set in about even with the front wheel of the nearest truck of said car; that said ladder was fastened onto one end of said running board, the ends of which running board had been negligently and...
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