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

• Decision Date: 31 October 1877
• Parties: STODDARD v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 514

STODDARD

v.ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Jackson Circuit Court.--Hon. SAMUEL L. SAWYER, Judge.

Wagner, Dyer & Emmons with W. H. Blodgett, for appellants.

It is true that it is the duty of the master to be careful in the selection of his servants, and to provide safe and suitable machinery; but the proposition is undeniable that the master will be exempt from responsibility in all cases where the risks were apparent, and were voluntarily assumed by a person capable of understanding and appreciating them. Smith v. Union R. R. Co. 61 Mo. 588; Keegan v. Kavanaugh, 62 Mo. 230; Hayden v. Smithville Manufacturing Co. 29 Conn. 548-558; Wonder v. B. & O. R. R. Co. 32 Md. 411; Williams v. Clough, 3 Hurlst. & Norm. 258.

J. Brumback, for respondent.

There was nothing like a failure of proof by plaintiff. Knowledge of want of force, or of the place, or of the machinery and apparatus, may not be knowledge of all the risks. It is the last kind of knowledge that is a material element in negligence.

Even if the evidence, in the judgment of sensible men, might lead to different conclusions as to whether they establish want of care or contributory negligence, the jury must decide. ( Norton v. Itner, 56 Mo. 352).

A large amount of work had to be done regularly in the yard each day by certain hours. The proper agent of the road, and so the road, had due notice of a hand being short, before Stoddard went to work. (53 N. Y. R. 551; McGowan v. St. L. & I. R. R. Co. 61 M. R. 352.) Stoddard knew that the particular train had to be switched and made up by a certain hour; he had never tried before to handle such a train with the assistance of one man; he had no actual knowledge of what he and another man could do in the time limited. How could he know that under the circumstances he and the other man could not safely undertake to do the work in the time? He alone could have done all the work by taking time enough, more time than was allowed. There is nothing to show that he was so negligent as to preclude a recovery. At least, that question was for the jurors, who had their attention very distinctly called to what would preclude a recovery in such case on account of want of sufficient force. Authorities as to instructions given: Lewis v. St. L. & I. M. R. R. Co. 59 Mo. 501; Porter v. H. & St. J. R. R. Co 60 Mo. 162; Gibson v. Pacific R. R. 46 Mo. 163

NORTON, J.

This suit was instituted in the circuit court of Jackson county by plaintiff, who was an employee of defendant, and whose business as such was to assist in making up trains at the yard of defendant, in Kansas City, for the recovery of damages sustained by him while in defendant's service. It is substantially alleged in the petition, that plaintiff was employed by defendant to assist in making up its trains, and that while so engaged in uncoupling a car from the tender and locomotive of defendant, the right foot of plaintiff was caught and fastened in what is known as a spring frog, so that he could not get out of the way of the moving tender which forced him down on the ground and ran on to and crushed his right foot and leg; that the injury was not occasioned by any negligence of plaintiff, but by the failure of defendant to furnish, in conjunction with plaintiff, a sufficient number of other laborers to carry on the businesss of making up its trains without unnecessary danger to plaintiff, there not being at the time of the injury any one on the car to set the brake of the car and draw the coupling-pin. The petition also charged, that at the place where he received the injury, defendant had provided a spring frog at the place for switching cars instead of a frog acting on a different and less dangerous principle, and that the same was unnecessarily unsafe for, and dangerous to plaintiff, while employed in switching cars. It also charged that the yard-master and engineer working in conjunction with plaintiff, did not possess ordinary skill and capacity in the business entrusted to them and were unreliable and incompetent, which defendant well knew and plaintiff did not know, and that the engineer did not move the locomotive and tender in a careful way, by reason of which he was injured. The allegations as to negligence of defendant in not furnishing the requisite number of laborers, competent and skillful yard-master and engineer, and machinery fit, suitable and safe for the purpose for which it was used, were denied by answer. The cause was tried by a jury and a verdict and judgment for $5,000 was rendered for plaintiff, from which defendant, after making ineffectual motion for a new trial, has appealed. After the plaintiff had closed his evidence in support of his petition, defendant moved the court to instruct the jury that upon the pleadings and evidence, plaintiff could not recover, which was by the court overruled. The refusal of the court to give this instruction is the chief error relied upon by defendant for a reversal of the judgment, it being conceded by counsel for defendant, that the instructions taken together are not sufficiently objectionable to reverse the judgment, provided they are applicable to the evidence. The sole question, therefore, to be considered by us is as to the action of the court in refusing to instruct the jury to find for defendant after the close of plaintiff's evidence. The petition...