Strother v. Chicago, B. & Q. R. Co.

• Decision Date: 05 July 1916
• Citation: 188 S.W. 1102
• Court: Missouri Supreme Court
• Parties: STROTHER v. CHICAGO, B. & Q. R. CO.

188 S.W. 1102

STROTHER v. CHICAGO, B. & Q. R. CO.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Motion to Transfer to Court in Banc Denied October 10, 1916.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Samuel B. Strother, administrator of the estate of Guy H. Jones, deceased, against the Chicago, Burlington & Quincy Railroad Company. Plaintiff took involuntary nonsuit, and from order overruling motion to set it aside, he appeals. Affirmed.

Damages in the sum of $25,000 are sought for the death of Guy H. Jones. It is charged that while he was engaged in lowering a loaded freight car, and in that connection operating a jack, the jack suddenly, and without warning, gave way, and the piston, or plunger, thereof fell with such rapidity, or was jerked or caused to act in such a way, as to jerk or knock the lever handle of said jack out of deceased's hands, thereby causing same to strike him on the jaw or head, and producing injuries from which death ensued.

The grounds of negligence relied upon are: (a) That the jack was in a defective and unsafe condition, in that it was old, worn, and out of repair in its working parts, and was liable to slip or give way without warning, and that same had not been properly inspected or tested before its use was permitted and authorized; (b) that a similar jack, used on the opposite side of said car and being operated at the same time by other employés of defendant, was also broken, defective, and unsafe, and by reason thereof, and by reason of defendant's further failure to provide adequate means or systems of signal, no reasonably safe method was provided by defendant for lowering both sides of said car, or preventing one side thereof from being lowered faster than the other, and that, by reason of this, the car was liable to cause its weight to be thrown on the jack in such a way as to cause the lever handle thereof to fly up and to injure those working therewith; that by reason of the defective and unsafe condition of said jacks, and the method provided for operating the same, the defendant failed to provide the deceased a reasonably safe place to work, or reasonably safe jacks with which to work. It is also alleged that the unsafe condition of the jacks and the unsafe method of lowering cars and doing the work required were well known to the defendant, or should have been known by the exercise of ordinary care and caution on its part. The answer, after admitting the incorporation of defendant as a railroad company, denies each and every allegation contained in the petition. At the close of plaintiff's case the trial court sustained a demurrer to the evidence, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside, which motion was duly filed, and, upon being overruled, the plaintiff appealed.

Deceased was 34 years of age, and in good health. He was employed by the defendant as a car repairer, and was at the time of his death engaged with other workmen in repairing a pair of wheels under a car loaded with lumber in transit from Missouri to Iowa. The workmen were using two jacks the one operated by the deceased being under the west side of the car and about 5 feet from the south end, the other in an opposite direction therefrom. The repairs had been made, and the car was being lowered at the time of the accident. The jacks were of the kind generally in use, and consisted of a lever 4 or 5 feet long, the lower end of which engages in a cogwheel about 10 inches in diameter, and the cogwheel in turn engages in an upright plunger, which is thereby raised and lowered for the purpose of raising and lowering heavy objects. When the lever is disengaged to take a new hold, what is called a "dog" automotically slips in the cogs or cogwheel and holds it in position. There is a small trip or trigger which is pushed to one side when the load is to be raised, and to the other side when the load is to be lowered. The jack is so arranged that when the load is to be raised the workman engages the lever in a slanting position in the cog gearing, and then exerts his weight and strength upward, thus raising the cog gearing one notch, and then disengages the lever from the cogwheel, which is held in position by the dog until the lever is raised and again engaged in the next cog, and so on. When the load is to be lowered the operation is reversed, and the workman gets the weight of the load as he raises the lever up, and after it has reached its point it is disengaged from the cogwheel, which is automatically held in position by the dog, and the lever is lowered without any weight or strength, and again engaged in the next cog or cogwheel, which is again released, and the operator again gets the weight as he raises the lever. No one saw the accident, and no one pretends to testify directly as to the cause of death. Such other facts as are material to a decision will be found in the opinion.

E. C. Whitesitt and Bird & Pope, all of Kansas City, for appellant. Warner, Dean, McLeod & Langworthy, of Kansas City (O. M. Spencer, of St. Joseph, of counsel), for respondent.

REVELLE, J. (after stating the facts as above).

While other acts of negligence were alleged, the proof has clearly narrowed the grounds down to the charge that the jack with which the deceased was working, and which was provided by the defendant, was, with the defendant's implied knowledge, in such a defective condition that while the same was being operated it slipped the cogs and gave way without warning, thereby causing the lever handle to fly up and strike the deceased with such violence as to cause his death. The respondent contends that even of this charge there is no substantial evidence, and that the trial court was correct in so ruling.

We allow ourselves a few preliminary words relative to a matter which our too frequent experience causes us to eye with more or less solicitude. It should be apparent to the profession that when we are called upon, as in this case, to pass upon questions of fact and determine their sufficiency as against demurrer, we are handicapped and at great disadvantage when the witnesses have been permitted, instead of speaking, to act and indicate their testimony by exhibits when such performances and exhibits cannot be reproduced before us. Under such circumstances, when the trial court or jury which has witnessed, and was in a position to understand, such performances has passed thereon, we shall, absent countervailing facts, indulge the presumption that such performances and actions, together with their inferences, were favorable to the lower ruling. We cannot do otherwise, because we cannot convict of error in the absence of error shown.

To reverse the judgment in this case we must find substantial evidence of the following: (a) That the jack was defective and worn; (b) that such defects caused it to slip the cogs and suddenly give way; (c) that by reason of such action on the jack's part the lever handle flew up; (d) that when it so flew up it struck the deceased and caused his death; (e) that defendant knew, or by the exercise of ordinary care and caution could have known, of such defective condition.

As to (a) we find the following evidence: Witness Ehrman testified that the jack exhibited at the trial, while the same one with which deceased worked, was then in a different condition, he explaining the difference in this wise:

"This piece is new (indicating) since we let the car down with the jack. Q. Can you describe more definitely the worn condition of that bearing? A. Well, I couldn't say exactly how much it was worn. Well, it was worn at least a quarter of an inch, that it all the difference there is in the jack in its...