Strayer v. Quincy, O. & K. C. R. Co.

• Decision Date: 21 April 1913
• Citation: 156 S.W. 732,170 Mo. App. 514
• Court: Missouri Court of Appeals
• Parties: STRAYER v. QUINCY, O. & K. C. R. CO.

156 S.W. 732

170 Mo. App. 514

STRAYER v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

April 21, 1913.

Rehearing Denied May 19, 1913.

1. RAILROADS (§ 275) — INJURIES TO SHIPPER'S EMPLOYÉS — DEFECTIVE CARS.

A railroad company which was accustomed to placing cars on the siding of a coal company which it knew were let down by the coal company's employés by gravity for loading was bound to exercise reasonable care to furnish reasonably safe cars, and was liable to the coal company's employés injured in dropping the cars by the railroad company's negligence in failing to furnish such cars.

2. NEGLIGENCE (§ 56) — "PROXIMATE CAUSE."

The "proximate cause" of an injury is the active efficient cause which sets in motion a train of events which causes the injury complained of, without the intervention of any force initiated and actively operating from an independent source.

3. RAILROADS (§ 279) — INJURIES TO SHIPPER'S EMPLOYÉS — PROXIMATE CAUSE.

A railroad company's act in furnishing a car with a defective brake for loading by a coal company was the proximate cause of an injury to a coal company employé by the brake giving way while he was letting it down for loading, though the coal company was also negligent in loading a defective car.

4. RAILROADS (§ 282) — INJURY TO SHIPPER'S EMPLOYÉS — JURY QUESTION.

In an action against a railroad company for injuries to a coal company employé while he was dropping down coal cars placed on the siding by defendant after loading them by a defective brake giving way, evidence held to make contributory negligence a jury question.

5. APPEAL AND ERROR (§ 927) — REVIEW — DEMURRER TO EVIDENCE.

In determining whether a demurrer to plaintiff's evidence was improperly overruled, the appellate court must view plaintiff's evidence in the light most favorable to him.

6. TRIAL (§ 295) — INSTRUCTIONS — SUFFICIENCY.

The first instruction in a personal injury action which purported to cover the whole case on the facts authorized a verdict for plaintiff upon finding the hypothecated facts "in such sum as you may think proper not to exceed" the amount prayed for, but the second instruction charged that, if the jury found for plaintiff, "they may take into consideration in assessing for damages the mental and physical pain" suffered by plaintiff in consequence of his injury, its character and extent, and continuance, if permanent, together with his loss of time and service, "and you may find for him in such sum as in the judgment of the jury under the evidence will be a reasonable compensation for the injury" not exceeding the sum prayed for. Held, that the first instruction construed with the second did not authorize the jury to award any damages they saw fit, but restricted the damages to the elements stated in the second instruction.

Appeal from Circuit Court, Adair County; Nat. M. Shelton, Judge.

Action by Joseph Strayer against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Campbell & Ellison, of Kirksville, J. G. Trimble and Willard P. Hall, both of Kansas City, for appellant. Chas. E. Murrell, of Kirksville, and Fugate & Son, of Novinger, for respondent.

JOHNSON, J.

This is an action to recover damages for personal injuries plaintiff alleges were caused by negligence of defendant. The injury occurred November 5, 1909, while plaintiff was working as a common laborer at a coal mine operated by the Rombauer Coal Company near Novinger, in Adair county. The mine was on a hillside, and was connected with defendant's railroad by a spur track-owned by defendant. This track ran uphill to and beyond the mine, and its end was called "the hole," and was used for storing empty cars furnished by defendant to the Coal Company for loading and shipping out the product of the mine. There was a "tipple" house not far from "the hole" at which the cars were loaded from overhead chutes. A number of side tracks (one for each chute) ran through the "tipple," and were connected at each end with the main spur track. When cars were brought to "the hole" by defendant, they were turned over to the Coal Company, and defendant did not resume control over them until after they were loaded and run down the hill to a place on the spur track where defendant received them. Cars were left in "the hole" with brakes set and chocked wheels and when a car was needed at the "tipple" servants of the Coal Company would go to "the hole," unlock the brakes, and allow the car to run down to the "tipple" by gravity, where it would be stopped with its front end under a chute. During the operation of loading the car would be moved forward from time to time until the hind end was brought under the chute to receive its part of the load. After the loading was completed, the car would be run down the hill to the place where loaded cars were received, all of which were destined for transportation over defendant's railroad.

On the day preceding the injury, the car in question was brought down from "the hole" to the "tipple," and loaded in the manner described, after which it was run a short distance out of the "tipple," and allowed to remain overnight on one of the side tracks. The brake was set, and the wheels were chocked. A fellow servant of plaintiff brought the car from "the hole," and handled the brake during the process of loading and removing the car from the "tipple." Plaintiff assisted in the loading and chocked the wheels. The next morning another car was brought out of "the hole," and loaded at the same chute. Then it was run down, and coupled automatically to the car in question. When the cars collided, the front car jumped or pushed away the blocks at the wheels; and, as the brakeman on the second car could not bring both cars to a standstill with his brake, plaintiff mounted the forward car and hastened to the brake at its front end. There was a small platform attached to the end of the car for the brakeman to stand on, and there was a "dog" pivoted at one end to the platform which worked in a ratchet wheel affixed to the brake rod, and held the brake in place when it was set. There was a crack in the platform, and the pivot bolt of the "dog" was in the line of the crack. This crack had been observed by the laborer who worked at the brake the preceding day, and plaintiff had been informed that the "dog" did not work well. The brake had been used effectively up to this time, and we think it a fair inference from all of the evidence that plaintiff did not know the real nature of the defect at the time he started to set the brake. As he descended to the platform, he perceived the crack, but had no time to investigate the condition of the "dog," and did not know it would not hold the brake when it was tightly set. In a deposition taken some time before the trial, plaintiff made admissions that indicated he had knowledge of the limitations of the brake in its defective state, but at the trial his testimony contradicted such admissions, and, as the jury were invested with the function of weighing his testimony, we think they were entitled to accept his explanation of his former testimony and his later version of the occurrence. As soon as plaintiff reached the platform, he wound up the brake, with the aid of a brake stick he carried with him, set the "dog" in the ratchet with his foot, and then proceeded to shift his stick in order to wind the brake still tighter. The strain thrown on the "dog" by this movement proved too great for its weakened attachment to the platform, and the pivot bolt slid back and released the brake. The unexpected and rapid reverse revolutions of the brake wheel threw plaintiff off the platform of the car, which at the time was moving forward very slowly. In trying to get out of the way plaintiff stepped into an unblocked switch; and, finding he could not extricate his foot, threw his body outside the track. The cars ran over his leg and, despite the efforts of the rear brakeman, ran down the hill. The defect we have described existed when the car was run into "the hole" by defendant, the crack was in plain view, and the defect created by its presence was easily discoverable.

The superintendent of the mine, introduced as a witness by defendant, testified that the duty of ascertaining whether or not cars provided by defendant were supplied with adequate brakes devolved on the laborers who handled the cars, and that it was the practice of these men to run down the hill without loading cars found to have brakes which would not hold. We quote from his testimony: "Q. What would you say as to the practice of the men there running cars by when they found they had defective brakes? A. Why, it was generally left to their judgment. If in their judgment the brake was not sufficient to hold, they would let it through and drop it by. Q. How generally was that known, if you know? A. It was generally known amongst the employés and men that were handling the cars."

The petition charges that defendant was negligent "in allowing said defective car to be placed in the above-described switchyards while in such defective condition as above described, well knowing at the time of the placing of said car at the place in said switchyards the purpose for which the same would be used, and that the employés of the said Coal Company would be required to shift and move the same on said switchyards, and that said switchyards were on a steep grade, and that the only means the employés of the said Coal Company had for holding and controlling the same was by means of the hand brakes thereon." The answer, in substance, is a general traverse. Ramp v. Railway, 133 Mo. App. 700, 114 S. W. 59.

At the request of plaintiff the court gave the following instructions:

"(1) The court instructs the jury that if you find and believe from the evidence that the defendant, the Quincy, Omaha & Kansas City Railroad Company, at the times alleged in plaintiff...