Spaulding v. Missouri Lumber & Mining Co.

• Decision Date: 02 June 1914
• Docket Number: No. 13589.,13589.
• Citation: 183 Mo. App. 648,167 S.W. 663
• Court: Missouri Court of Appeals
• Parties: SPAULDING v. MISSOURI LUMBER & MINING CO.

167 S.W. 663

183 Mo. A. 648

SPAULDING v. MISSOURI LUMBER & MINING CO.

No. 13589.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. EXCEPTIONS, BILL OF (§ 43*) — FILING — TIME.

Under the express provisions of Laws 1911, p. 139, an objection that a bill of exceptions was not filed within the time granted by the court was unsustainable, where the bill was approved and filed before the appellant was required by the rules of the Court of Appeals to serve its abstract of record on the appellee.

2. MASTER AND SERVANT (§ 278*) — INJURIES TO SERVANT — DEFECTIVE APPLIANCES — NEGLIGENCE — EVIDENCE.

Where plaintiff, while acting as a brakeman on one of defendant's cars, was injured by the breaking of an eyebolt attaching a brake chain to the staff, evidence of defendant's inspector that, on examining the broken bolt immediately after the injury, the break therein appeared to be old in part and in part new, that there was an old crack in the bolt, and so much of it was rusty, while the remaining portion of it was bright, was sufficient to justify a finding that the bolt had been defective for a sufficient length of time to enable defendant to discover it by the exercise of ordinary care in performing its duty of inspection.

3. MASTER AND SERVANT (§ 293*) — INJURY TO SERVANT — INSTRUCTIONS — DEGREE OF CARE.

In an action for injuries to a servant by the breaking of an eyebolt attaching a brake chain to the staff, an instruction that it was defendant's duty to furnish and supply to its employés machinery and appliances that were reasonably safe, secure, and sufficient for the transaction of defendant's business, and, in the absence of notice to the contrary, defendant's employés were entitled to assume that the cars and appliances furnished to them were so safe, secure, and sufficient, and that if defendant neglected its duty in that behalf, and as a result of such negligence plaintiff was injured, he was entitled to recover, was erroneous as in effect imposing on defendant the obligation of an insurer rather than the duty to exercise ordinary care.

4. TRIAL (§ 296*) — INSTRUCTIONS — CONSTRUCTION OF CHARGE AS A WHOLE.

A judgment for plaintiff, in an action for injuries to a servant, would not be reversed because an instruction imposed on defendant the obligation of an insurer to furnish safe cars and appliances rather than the duty to exercise reasonable care, where defendant's instruction made the matter entirely clear and stressed the proposition that defendant was not an insurer and was only bound to exercise reasonable care in that behalf.

5. MASTER AND SERVANT (§ 291*) — INJURIES TO SERVANT — ACTIONS — PLEADING AND PROOF.

Where plaintiff alleged that his injury resulted from defendant's negligence in failing to provide a safe eyebolt by which a brake chain was attached to the brake staff, and there was neither allegation nor proof as to any defect in the brake chain, an instruction authorizing a recovery if the jury found that the chain connecting the brake and ratchet was defective or broken was erroneous.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Suit by J. S. Spaulding against the Missouri Lumber & Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

L. F. Dinning, of Poplar Bluff, L. B. Shuck, of Eminence, and W. J. Orr, of Springfield, for appellant. Orchard & Cunningham, of Eminence, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant is engaged in the lumber business, and owns and operates in connection therewith numerous tramways and cars operated by a steam locomotive thereon. At the time of his injury, plaintiff was a brakeman on one of defendant's logging trains. It appears the locomotive was disconnected and certain cars were shunted forward down an incline, and plaintiff was stationed upon one of the cars with a view to controlling it by applying the brake. In applying the brake, it was necessary to wind a chain on the brake staff, and this chain was made fast by means of an eyebolt. The eyebolt broke in two while plaintiff was utilizing the brake, and precipitated him forward upon the track to his injuries. It appears one of the cars passed over plaintiff, breaking one of his legs and severely injuring the other.

Plaintiff insists that the matters of exception may not be considered here on appeal for the reason it does not appear the bill of exceptions was filed within the time authorized by the court thereabout. Obviously this objection is without merit under the recent statute touching the question. The case was tried at the May, 1912, term of the circuit court, and leave was granted to defendant during vacation thereafter to file the bill of exceptions in aid of the appeal then granted. It is true the bill of exceptions was not filed within the time granted by the court, but it was approved and filed before the defendant was required by the rules of this court to serve its abstract of the record on the plaintiff, and such will suffice under the amended statute, concerning the matter of filing the bill of exceptions, approved March 13, 1911. See Laws of Missouri 1911, pp. 139, 140. It is further urged on the part of plaintiff that we may...