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

• Decision Date: 14 November 1887
• Citation: 5 S.W. 810,93 Mo. 79
• Court: Missouri Supreme Court
• Parties: TABLER v. HANNIBAL & ST. J. R. Co.

5 S.W. 810

93 Mo. 79

TABLER v. HANNIBAL & ST. J. R. Co.

Supreme Court of Missouri.

November 14, 1887.

1. RAILROAD COMPANIES — NEGLIGENCE — USING ROPE FOR COUPLING CARS.

Plaintiff was a carpenter in the employ of defendant, and was injured by an accident while on a wrecking train. A derrick car, which had no draw-head, had been attached to the train by a rope. Plaintiff claimed that a chain made a better coupling, and had formerly been used. The defendant denied both statements on the trial. The court instructed the jury that, if the rope coupling was more dangerous than the chain coupling, defendant would be liable, if the accident was caused by such coupling. Held error; that the use of a rope as a coupling, when a chain was better, did not necessarily imply negligence, if the rope was a reasonably safe coupling.

2. SAME — NEGLIGENCE — QUESTION FOR JURY.

It was for the jury to determine whether, the car being without a draw-head, the defendant used all reasonable and ordinary care in the use of a substitute; and it was error for the court to instruct the jury that, as a matter of law, there was want of such care in the use of a rope.

3. SAME — ASSUMPTION OF RISKS BY EMPLOYE.

Whether the plaintiff, in entering the employment of defendant, contracted with reference to the risk arising from the use of a rope as a coupling, was a matter of fact for the jury; and it was error for the court to instruct, as a matter of law, that the use of the rope created an extraordinary hazard, which the plaintiff had not assumed.¹

4. SAME — OBEDIENCE TO ORDERS OF SUPERIOR — WRECK-MASTER.

A wrecking train was under the general charge of a conductor, but the wreck-master had control of the workmen, and, it was claimed, ordered the derrick car to be coupled with a rope, instead of a chain, and an employe other than the plaintiff executed the order. Held, that the wreck-master was the agent of the defendant, and that the performance of the order as given did not deprive plaintiff of his remedy for injury caused by the agent.²

Appeal from circuit court, Livingston county; JAMES M. DAVIS, Judge.

Strong & Mosman and Geo. W. Fasley, for appellant. S. P. Huston, for respondent.

BLACK, J.

The plaintiff, a bridge carpenter in the employ of the defendant, brought this suit to recover damages for injuries received under the following circumstances: A passenger train was wrecked at Bevier Station at 2 o'clock on the morning of the first of March, 1881. The defendant caused a wrecking and relief train to be made up at Brookfield, a station west of Bevier. This train, composed of an engine, flat cars, a derrick car, caboose, and a passenger coach, all coupled together in the order named, started for the scene of the wreck at 4 o'clock of the same morning, with physicians, the plaintiff, and other persons on board. As the train passed over Brush creek, the boom of the derrick, and perhaps the mast, caught in the bridge timbers, and pulled the bridge down. The caboose in which the plaintiff was riding went down with the bridge. Several passengers were killed, and the plaintiff received the injuries of which he complains. The tool car lodged on the east pier of the bridge, and the derrick car crossed and fell over the dump 150 feet beyond. The arch bars of the rear truck of the derrick car were broken. This car had been repaired on the day before the disaster by the plaintiff and other carpenters. The draw-head in the forward end, which had been out for 10 or more days, had not yet been put in place; so that, on this occasion, the car was attached to the next forward car by means of a switch rope. In other respects the car appears to have been in good repair; and it is admitted that the bridge was in good condition.

The evidence for the plaintiff tends to show that a chain had been before used to make the coupling; that one was used on this occasion when the train was made up, but that the rope was substituted therefor by the order of Mr. Cartter, the master carpenter and wreck-master; that a rope is unfit for such use; and that the derrick car, being without a draw-head, should have been placed in the rear of the train, and the boom turned to the rear. The boom projected forward, and was held in place by grab-chains. For the defendant the evidence is that a chain had never been used to make the coupling, and that a rope is better and safer than a chain for such use. One witness for the plaintiff says he saw a hook in a bridge tie after the train had been wrecked, and from this, and the circumstance that the rope coupling lengthened out so that it had to be and was taken up at a station before reaching the bridge, the conclusion was sought to be drawn that the loose end of the rope fell from the car, and the hook thereon caught in a bridge tie, and caused the wreck. But the defendant produced evidence to the effect that the hook found in the tie came from a rope used in removing the debris from the creek, and not from the rope used as a coupling.

The wreck-master knew the derrick car was without a draw-head, and so did the plaintiff; but the evidence is that plaintiff did not know that a rope had been used to make the coupling. On the evidence the theory of the defendant seems to be that the arch bars of the truck to the derrick car broke and threw that car into the bridge timbers, and that the truck was without any known or visible defect.

The second instruction for the plaintiff declares that, in entering the service of the defendant, the plaintiff "only assumed the ordinary risks and dangers of such employment, and did not assume or contract with reference to any risks or danger arising or resulting from or occasioned by the use of a switch rope, in place of a chain, in coupling its derrick car in the wrecking train; and if the jury believe from the evidence that the use of such switch-rope rendered such coupling more unsafe or dangerous than if a chain had been used for such coupling, and that the plaintiff did not know of the use by defendant of such switch-rope at the time he took passage on said train, and that the injuries to plaintiff were caused or brought about by such unsafe coupling, they will find for plaintiff: provided, they further find that such switch-rope was substituted by order of A. J. Cartter, and that he had charge of the bridge and wrecking department of the defendant, with power to hire and discharge the men in his department, and to direct with what material such coupling should be made."

1. By this instruction the liability of the defendant is made to flow from the fact that the use of a rope is more dangerous than a chain. It is not the duty of the defendant to furnish absolutely safe appliances. It is sufficient that the master furnish appliances that are reasonably safe, and are fit for the designed use. In other words, the duty of the master is to use all reasonable care in procuring the implements to be used, and in keeping them in good order and repair. Porter v. Railroad, 71 Mo. 67; Siela v. Railroad, 82 Mo. 435. Here it appears to be conceded by the plaintiff that a chain would have been a suitable and proper coupling. A chain is then taken as a standard, and the liability of defendant is made to depend upon the fact...