Taylor v. Missouri Pac. Ry. Co.

• Decision Date: 11 May 1891
• Citation: 16 S.W. 206
• Parties: TAYLOR v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

16 S.W. 206

TAYLOR v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 11, 1891.

NEGLIGENCE OF MASTER — FELLOW-SERVANTS — DEFECTIVE APPLIANCES — ASSUMPTION OF RISK.

1. A switchman, under orders of a yard-master and foreman, is not a fellow-servant of the latter, in respect of acts done by them in the exercise of their authority as such.

2. A master is bound to use ordinary care to furnish and maintain reasonably safe and sufficient appliances for the work of his servants.

3. A delegation of that duty to subordinates does not absolve the master from liability for its breach.

4. The danger arising from the use, by a yard-master, of a coupling consisting of a piece of brake-beam rod, partly bent, but not sufficiently to stay in place when the cars bump together, cannot be declared, as matter of law, one of the ordinary risks of the employment of a switchman injured in consequence thereof, and having no knowledge or notice of said facts.

5. An employe assumes the usual risks of the service in which he engages, and is bound to exercise ordinary care to avoid danger.

6. Ordinary care depends greatly on the circumstances in question.

7. It is not error to modify the phraseology of an instruction, when no substantial change is so made in the principle declared. SHERWOOD, C. J., dissenting.

8. Ten thousand dollars damages, awarded for loss of plaintiff's leg, etc., held excessive by a majority of the court. BARCLAY, J., dissenting.

(Syllabus by the Court.)

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

The action is for personal injuries based on negligence. Plaintiff's testimony presents this kind of a case: He was an experienced switchman in defendant's railway yard at Kansas City, Mo. Mr. O'Neill was the assistant yard-master in charge of the yard, and of the movement of trains, and of the men, at the time of the injury, which occurred December 9, 1884, about 10 o'clock A. M. This yard-master had general direction of defendant's business there, including the work in which plaintiff was engaged when hurt. Subordinate to the yard-master was a foreman, Mr. Miller, having charge of the switching crew or gang of men of which plaintiff was one. This crew was directed to bring out some freight cars from a certain track, and run them upon another. In carrying out this order, plaintiff went to the top of the train, and passed along the cars to let off the brakes. In doing this he approached, but did not reach, the point where Messrs. O'Neill and Miller, the yard-master and foreman, were standing on the ground. He was a distance of some two car-lengths from them. Mr. Miller then gave him a signal, which plaintiff repeated to the engineer, for the train to go ahead. It was obeyed. When the "slack" was thus taken up, Miller gave a signal to back a little, which plaintiff repeated to the engineer. That order was executed, and the train went back slowly to make a coupling between a certain stock-car and a flat-car loaded with stone. This coupling was made by O'Neill, assisted by Miller. The stock-car was defective. The draw-head ran underneath it in such a way that a regular coupling-pin could not be used to hold the cars together, so they effected the coupling by means of a piece of a brake-beam rod of iron, five-eighths of an inch in diameter, and three or four feet long, instead of a pin. Before putting it into position Mr. O'Neill bent the rod over the draw-bar into an angle near one end. This served to hold it in place when the cars first began to move. (An ordinary coupling-pin is from 12 to 15 inches long, and from one and one-half to two inches in diameter.) After the coupling was made as described, the train, under orders of Miller, moved forward towards the designated point where the cars mentioned were to be placed. The plaintiff, in the line of his duty, as the moving train approached the point mentioned, went down the ladder of the stock-car, and was stepping upon the flat-car (loaded with stone) in order to detach it, when the cars parted, and precipitated him upon the track, where he was run over. It appears that the improvised coupling-pin fell out just at the moment when plaintiff had one foot upon each car, in the act of passing from one car to the other. In consequence of the mishap, plaintiff's leg had to be amputated, and he suffered great pain, etc. The defendant's evidence corroborated that of plaintiff as to the manner of making the coupling. It tended, further, to show (inferentially at least) that plaintiff was near by, on top of the stock-car, when the rod was used (as described above) by Mr. O'Neill or Mr. Miller, and that such couplings were frequently made, and that they were often rendered necessary, especially in moving defective cars; that the latter had to be handled occasionally in the yards to get them into suitable places for repairs; that the stock-car in question had been marked as defective by a placard on the side to that effect before this accident. At the close of the testimony the court refused to direct a verdict for defendant, and submitted the case to the jury under the instructions referred to in the opinion. The defendant's refused instruction mentioned was as follows, viz.: "(3) The jury are instructed that it was a part of the duty of the plaintiff to assist in removing damaged cars in the defendant's yards for the purpose of storing and repairing the same. If the jury believe from the evidence that the car in question had been marked and set aside as damaged, then that fact required the plaintiff to exercise more than ordinary care and vigilance to protect himself from injury in moving or working about such car." Plaintiff obtained a verdict for $10,000, and after judgment thereon, and the ordinary steps for a review, defendant appealed. The opinion mentions all other material facts in the case.

Adams & Buckner, for appellant. Warner, Dean & Hagerman, for respondent.

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

The injury to plaintiff was fairly traceable to the mode of coupling adopted by defendant's yard-master and foreman to effect a junction between the stock-car and the flat-car loaded with stone. The occurrence took place in the switching yards used by defendant for the purposes of its business at Kansas City, Mo. Plaintiff was under orders of both the men mentioned. The former (the yard-master) had power to hire and discharge employes, and general charge of defendant's business at the place mentioned. The evidence tended to show that he personally made the coupling in question while the plaintiff was on top of the freight-car, some little distance away, communicating signals from him and the foreman, Mr. Miller, to the engineer, as directed by them. That plaintiff, under the circumstances, was not a fellow-servant of these superiors, within the meaning of the rule exempting the master from liability to one servant for the negligence of his fellow, engaged in the same line of work under a common employment, must be considered settled by recent rulings of this court, the reasons of which need not now be restated. Dayharsh v. Railroad Co., (Mo.) 15 S. W. Rep. 554. Furthermore, the duty to exercise ordinary prudence to furnish and maintain reasonably safe and suitable appliances for the work in hand is one for whose breach the master is liable, though he may have delegated its performance to subordinates. Adequate and reasonably safe means to couple cars were necessary parts of such appliances, in the place and circumstances of the case under review. It is evident that the mere use of the piece of iron rod as a coupling-pin was not especially dangerous in this instance. It was the manner of its use that made it so. The rod did not break. It simply fell out at a critical moment. Being 3 or 4 feet long, it was less likely to jolt out of its socket by the motion of the cars than...