Stephens v. Hannibal & St. J. R. Co.

• Citation: 9 S.W. 589,96 Mo. 207
• Court: United States State Supreme Court of Missouri
• Decision Date: 12 November 1888
• Parties: STEPHENS v. HANNIBAL & ST. J. R. CO.

9 S.W. 589

96 Mo. 207

STEPHENS v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri.

November 12, 1888.

1. MASTER AND SERVANT — NEGLIGENCE OF VICE-PRINCIPAL — DEMURRER TO EVIDENCE.

Plaintiff, a section hand in defendant's employ, was directed by the foreman to get off the track on which they working, to make way for a train. He did so, but called the foreman's attention to some stones left on the track. The latter said, "It is time you were getting them off." Plaintiff understood this as an order, and, when the train was about 100 yards away, and rapidly approaching, attempted to remove them, when he was struck by the engine and injured. Held, that the evidence did not show that the danger was so open and obvious to plaintiff that he ought to have refused to obey the order, and that a demurrer to the evidence was properly overruled.

2. SAME — INSTRUCTIONS.

An instruction that if the jury found that to obey the order at the time and under the circumstances was extrahazardous, but did not plainly imperil plaintiff's life or limb, and that in obeying the order he was injured, without negligence on his part, etc., he was entitled to recover, furnishes the proper limit to plaintiff's right to recover.¹

3. SAME — EVIDENCE — DAMAGES.

Plaintiff was asked by his attorney whether he was a married man, and, if so, how many children he had. The court, over objection, permitted him to answer, first saying to the jury that they must not consider the question or answer in fixing the amount of their verdict, should it be for plaintiff. The verdict was for $8,000. The court gave no specific instruction as to the measure of damages. Held, that the evidence was incompetent, and, in view of the result, it could not be said to be harmless.

Appeal from circuit court, Clay county; GEORGE W. DUNN, Judge.

Action for damages for personal injuries, brought by William D. Stephens against the Hannibal & St. Joseph Railroad Company. Verdict and judgment for plaintiff, and defendant appeals.

Strong & Mosman and Huston & Parrish, for appellant. Henry Smith, for respondent.

BLACK, J.

This case was here before, and is reported in 86 Mo. 221. It is now freed from any question of negligence on the part of those in charge of the train, and stands on the alleged negligence of Rice, and the alleged contributory negligence of the plaintiff. Now, as on the former appeal, it appears the plaintiff and five others, under John Rice as their foreman, were engaged in raising a part of defendant's track. For that purpose rocks were distributed along the track by the construction train. Plaintiff and the other laborers put them on the track, broke them with sledge hammers, and forced the pieces under the ties with tamping bars. The evidence shows that a west-bound passenger train was behind time. It was heard before it was seen, but, when first heard, the men could not tell whether it was on the defendant's road or a train on another road. The train came at a faster rate of speed than usual; and, when within 100 or 150 yards of them, Rice told the men to get off the track, and they did so. It was then discovered that there were two stones on the track, about six by twelve inches, as plaintiff says; or the size of a dinner bucket, as stated by Rice. Plaintiff says "the foreman said, `Clear the track,' and we all got off. I then said to Rice, `Jack, there are two stones on the track,' and he said to me, `It is time you were getting them off.' I understood this for an order. I undertook to get them out of the way of the train by putting them between the ties, and succeeded in doing this, but hadn't time to remove the tamping bar with which I was working, and it was struck while still in my hands, by the engine. The tamping bar struck my right arm, and turned me around, and I was struck on the left arm and side by the engine. I thought the stones might ditch the train." Says he first saw the train when Rice said "Clear the track," and that he had just got off when he saw the stones, and called Rice's attention to them; and that the train was then about 100 yards away. Rice says he at the same time saw a hand car coming towards them, and he started forward to signal those in charge of it to get off the track; that, after going a few steps, Stephens was hurt; that the train was in sight when he told Stephens to get the rocks off; that in his opinion it was necessary to remove the stones to avoid danger; and that it was his duty to flag the train when there were obstructions on the track, but he did not flag it that morning. A number of plaintiff's ribs and his collarbone were broken, and the left arm was so shattered that it had to be amputated. As Rice had charge of the gang of men, and they were subject to his orders only, there can be no doubt but he was the agent of the defendant, and not a fellow-servant with the plaintiff, in respect of the orders given. His negligence was the negligence of the defendant. Enough was said on this subject when the case was here before. The court refused an instruction in the nature of a demurrer to the evidence, and at the request of the plaintiff gave an instruction, the material portion of which is in these words: "And if the jury further find that plaintiff was one of such workmen so employed on defendant's track under Rice as such foreman, and that Rice recklessly, carelessly, and negligently ordered plaintiff to remove the stones from the track; and that to obey the order at the time and under the circumstances was extrahazardous, but did not plainly imperil plaintiff's life or limb, and that plaintiff in obeying the order was injured because thereof, and without fault on the part of the plaintiff, then the jury will find for the plaintiff, and assess his damage at such sum, not exceeding fifteen thousand dollars, as will compensate him for the injuries sustained." To remove the stones from the track under the circumstances disclosed was surely accompanied with more danger than was ordinarily incident to the business in which the plaintiff was engaged; and the evidence tends to show negligence on the part of Rice in directing the removal of the stones at the time he gave the order. We do not understand these propositions to be controverted on this appeal. The chief contention is that the evidence shows that the danger was open and obvious to the plaintiff; that he ought to have disobeyed the order; and for these reasons the demurrer to the evidence should have been sustained.

Generally a servant cannot recover for those injuries resulting from causes seen and known by him. But, even when there is no order to do a given act, there are some modifications of the general rule. Thus it is held in many cases, where the servant knowingly incurs the risk of defective machinery, still, if not so defective as to threaten immediate injury, it is for the jury to determine whether there was negligence on his part. Huhn v. Railroad Co., 92 Mo. 443, 4 S. W. Rep. 937, and cases cited. So, too, where the danger is patent, and is known to the servant, the master may be liable for injuries resulting therefrom, as when he has lulled the servant into a sense...