Smith v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1878
• Citation: 69 Mo. 32
• Court: Missouri Supreme Court
• Parties: SMITH v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

69 Mo. 32

SMITH

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON. Judge.

Wells H. Blodgett for appellant.

L. C. Slavens for respondent.

HENRY, J.

Plaintiff was employed as a brakeman by defendant, and in attempting to uncouple some cars, was knocked down and his foot was run over by the car next behind him, inflicting an injury of so serious a nature as to render amputation of the leg above the knee necessary. He went between the cars while they were in motion, removed the coupling pin, then went back to take out the link, and while walking between said cars his right foot outside, and his left foot inside of the rail, his left foot was caught and held fast between the guard-rail and that of the main track. It was thus that the accident occurred, and this action is to recover damages for the injury. The particular negligence alleged in the petition was, first, that the guard-rail was unnecessary where it was placed; and, second, that said guard-rail was constructed of railroad iron, known as the T rail, instead of a different kind of rail, which would have been as serviceable to defendant and less dangerous to its employees. The first ground was abandoned on the trial, and plaintiff, relying on the second, introduced evidence tending to show that a guardrail of railroad iron, known as U rail, would have been as serviceable to the company and less dangerous to its servants; that owing to the form of the U rail his foot could not have been caught and held as it was in the T rail.

Donnelly, who testified for plaintiff, stated that the T rail is in general use in this country; that there are some U rails in use on the bridge at Kansas City; that he knew of no other place where that kind of rail was in use. Knickerbocker, for plaintiff, testified that he had had about twenty years' experience in the construction of railroads, laying tracks, &c. that he worked on the Illinois Central railroad in 1854, and on an Iowa railroad in 1856, and subsequently on the Fort Scott and Hannibal & St. Joseph railroads; that he never had anything to do with any except the T rail; never saw the U rail; that he knew nothing of it but from the works he studied. The evidence showed conclusively that the T rail is that generally used, and that the U rail is but little used by railroad companies.

The plaintiff had been about six days in defendant's employment when the accident occurred. He had, before entering into defendant's service, been engaged three or four years on the Illinois Central, on which road the T rail was in use. He knew there was a switch at the place where he was injured, and that it was of T rail, and testified that generally there were guard-rails where there were switches, and could not say that he ever saw a switch without a corresponding guard-rail. J. M. Buckley and Mr. Emerson both testified to an experience in railroading of several years, on different roads, and to an acquaintance with the roads running into Kansas City, also the Illinois Central, the Pennsylvania Central, the Lafayette & Indianapolis, the New Albany & Salem and others, and that they never saw any other than the T rail used in the construction of guard-rails.

For the plaintiff the court instructed the jury as follows:

1. If the jury find from the evidence in this cause that the guard-rail belonging to and used by defendant in operating its road, and carrying on its business as a part of said road or appurtenances, was, from the situation or construction thereof, unsafe for employees of said railroad company employed in operating said road, and that the same, i. e., said guard-rail, might have been so made, situated or constructed as could have answered as well all the uses of said defendant in operating its said road, and at the same time have been safe for its employees while engaged in the discharge of their duties, in operating said road, and that the defendant knew this, or might have known it by the exercise of reasonable care and diligence, then the jury are instructed that the defendant is liable to the plaintiff for damages for any injuries which, from the evidence, they find he has received in consequence of such unsafe guard-rail, after such want of safety of the same was known, or by the exercise of reasonable care and diligence might have been known to the defendant; and provided, also, they believe from the evidence that plaintiff, when he received such injuries, was exercising ordinary care and diligence, and did not know of such unsafety of such guard-rail.

2. If the jury find from the evidence in this case that the guard-rail used by the defendant, when the plaintiff was injured, was, from its make or construction, unsafe, and that defendant knew thereof, or might have known thereof by the exercise of reasonable care and diligence, and that plaintiff was injured by his foot being caught in said guard-rail, the jury are instructed that the defendant is liable to plaintiff for any injuries he has received in consequence of such defect in the make and construction of said guard-rail after it was known, or could have been known by the defendant; if they further believe that the plaintiff was exercising ordinary care and prudence at the time he received the injury, and did not know of the defect in said guard-rail in its make and construction.

The following, asked by defendant, were refused:

3. The plaintiff was bound to exercise such care an prudence as was commensurate with the danger of the employment in which he was engaged, and if you believe that, at the time of the happening of the injuries complained of, plaintiff was not exercising such care and prudence as was commensurate with the danger incident to his employment, when by the exercise of such care and prudence he could have avoided the injury, then he cannot recover in this action.

15. If the evidence shows that the defendant used, at the place where plaintiff was hurt, the most approved sty or kind or tracks and guard-rails, and that the same were in general or universal use in this country, or this part of the country, and that the same were placed or located in the usual or approved methods in use by the best constructed and conducted roads of the country, then, in such case, the plaintiff cannot recover.

There is a perplexing confusion and conflict in the authorities with regard to the duty of a railroad company to its employees, in the matter of furnishing implements and machinery for them to work with. In some of the cases dangerous and defective machinery and implements are confounded. Machinery is not necessarily defective because dangerous. The most perfect steam-engine requires skill and care in its management, and is a dangerous agent. Circular saws, planing machines and nearly all machines used in wood work are dangerous, but not, therefore, necessarily defective. This distinction must be kept in view in determining all questions which arise in suits for injuries received by employees in using implements and machinery furnished them by the employer.

If the employer furnish defective machinery to an employee ignorant of a defect which was, or might have been, known to the employer by the use of proper care and vigilance, he is liable to the employee for any injury the latter may sustain in operating the machine with proper care on his part. This is all that was decided in Porter v. The Hannibal & St. Jo. R. R. Co., ...