Thorpe v. Missouri Pac. Ry. Co.

• Citation: 89 Mo. 650,2 S.W. 3
• Parties: THORPE v. MISSOURI PAC. RY. CO.
• Decision Date: 15 November 1886
• Court: United States State Supreme Court of Missouri

2 S.W. 3

89 Mo. 650

THORPE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

November 15, 1886.

1. NEGLIGENCE — PLEADING — CONTRIBUTORY NEGLIGENCE — MATTER OF DEFENSE.

Contributory negligence is to be pleaded by way of defense, not to be negatived by plaintiff's pleading.¹

2. MASTER AND SERVANT — LIABILITY OF MASTER TO SERVANT — CONTRIBUTORY NEGLIGENCE.

A servant is not necessarily chargeable with contributory negligence in remaining in a certain employment, although he may know that the appliances used are defective and insufficient, if the danger or risk is not such that, as a prudent man, he is bound not to assume them, and to refuse to continue in the service.²

3. SAME — KNOWLEDGE OF DEFECT — INJURIES OF EMPLOYE ON RAILROADS.

The assumption of risk only follows as a result of the servant's remaining after knowledge of the defect, where he continues without objection, protest, or complaint on his part; and there is no waiver by him of his objection to such defect, if there has been any notice given by him, however timid and hesitating, so long as it plainly conveys to the master the idea that a defect exists, and that the servant desires its removal. So held where the plaintiff, one of a crew of three men employed in switching and making up trains for defendant, was injured because the usual fourth man was not with said crew to convey to the engineer the signals properly given by plaintiff; complaint of the absence of such fourth man having been previously made by plaintiff to defendant.²

Appeal from Jackson circuit court.

Woodson & Slaughter, for respondent, Thorpe. T. J. Portis, for appellant, Missouri Pac. Ry. Co.

RAY, J.

This is a suit for damages for personal injuries sustained by plaintiff while in the employment of defendant as a switchman in its yards at Kansas City, Missouri. A trial thereof in the circuit court of Jackson county resulted in a verdict and judgment in plaintiff's favor in the sum of $2,500, from which defendant has appealed to this court.

In his amended petition plaintiff charges a failure of duty on the part of defendant to furnish a sufficient number of hands in conjunction with plaintiff to carry on the business of making up trains in defendant's yards, and in conveying signals with proper dispatch and safety; that defendant was duly notified of this; that about the time of the injury plaintiff had gone between two of the cars, and had attempted to couple them; that, failing to do so, he stepped out, and gave a stop signal, and then went again between the cars to effect the coupling, but that, owing to the insufficiency of help employed to assist him, said stop signal failed to reach the foreman of the work or the engineer, in consequence of which the foreman gave the signal to the engineer to back the cars, which the engineer did, and that plaintiff's hand was caught between two of said cars, and thereby injured; and that the same was caused without any negligence on his part.

The objection was made at the trial, which is renewed in this court, that the amended petition wholly failed to state any cause of action, and that, therefore, no evidence should have been received in support of it. In support of this objection defendant's counsel has cited and quoted Thompson on Negligence, 1050, where the author, after discussing the grounds upon which the master's liability to his servant have been placed in a number of cases, says: "From this it would seem to follow as a rule of pleading that the plaintiff must allege in his declaration or complaint that the employer had notice or knowledge of the efficient cause of the injury, or ought, by the exercise of reasonable diligence, to have known it, and that the servant did not have such knowledge, or was not ignorant of it in consequence of a want of ordinary care on his part." But the same author, at page 1057, also says: "It must appear that the servant was excusably ignorant of the defective appliances, yet it does not necessarily follow that a declaration will be bad which does not so allege, although it is better that such allegation should be made; and that this is obvious when it is considered that there are many cases where mere knowledge on the part of the servant does not operate to bar his right of action.

The cases from which the rule for which defendant contends is taken, are, we believe, from courts not in accord with this court as to the rule of pleading the contributory negligence of plaintiff, and which hold that the burden of proof is upon the plaintiff to show both the negligence of defendant and his own care, which is not the rule in this state. Petty v. Hannibal & St. J. R. R., (not yet reported.)

The continuance of plaintiff in the employment, with knowledge of the risk arising from the insufficient force for the required work, was set up affirmatively in the answer as a defense to the action, as we think it should have been. We therefore hold the objection to the petition not well taken.

It is urged in behalf of defendant that there is nothing in the evidence to show that plaintiff's hand was injured by the collision of the cars, or while he was attempting to make the coupling, or as to how the accident happened. In answer to the question to state how the injury described in the petition occurred, plaintiff says: "When I first went in between the cars to make the coupling I found a difference in the draw-heads, — one high and one low, — and I failed to make the coupling; and I stood out, and gave the signal to stop. The cars stopped, and then I went in to change the links, — to turn the link over, so as to make the coupling." On re-examination plaintiff stated, in answer to the question, "What injuries did you receive in that accident?" "I lost two of my fingers." James Thorpe testified on this point: "At the time of the injury I was standing about ten car-lengths from McGee, and about twenty from my brother. The cars backed down on my brother immediately after I gave the back signal to the engineer, and struck and cut his hand." Enough is shown by the evidence, we think, to make it apparent that plaintiff's hand was caught and injured, and that his fingers were lost, in the manner and by the means, substantially, as charged in the petition.

A further objection to the sufficiency of the evidence is that it fails to show that there was any insufficiency in the number of hands employed to do the work. In answer to the question how many men are required and are usually considered necessary for the work in which he was engaged, the plaintiff testified: "Four men. They can give the signals better; that is, the fourth man can, because the others are occupied with some other work. They have to couple and uncouple cars, and throw switches, which requires three men, and where there is the fourth he gives the signals. We had three men at the time of my injury." James Thorpe testified: "The whole yards there are very irregular, and the tracks are crooked, and not a proper distance apart. It is a more intricate set of tracks than tracks used for that purpose usually are. Our help was short of the usual number at the time of the accident. I considered it short, because we needed more men to get the signals from one to the other. Our work was to couple cars, convey signals, throw switches, and look out for street crossings. One man does the coupling and uncoupling; another looks out for signals. A switchman usually stands at the switch, and the foreman usually does the cutting off. When we only have a coupler, a switchman, and a foreman, we need another man to convey signals. We need the other man because the switchman is often on the side of the cars where he can not give signals. We were rushed with work the night of the accident." A. G. Hinkle, who was yard-master at the time, testified: "I regard four men as sufficient. When we are very much crowded, more men are required. That end of the track is pretty crooked. Part of it is good." In the testimony of plaintiff also occurs the following: "Question. Do you regard three men as insufficient to do the business? Answer. No, sir; provided they are careful, and things are in proper shape. Q. You don't exactly catch my meaning. I asked you how many men are usually required to transact this business, and you answer four. A. Yes, sir." This statement by plaintiff that he did not regard three men as insufficient to do the business, provided they were careful, and things were in proper shape, has an important bearing on the question; but it is not, we think, to be regarded as a conclusive admission on his part that three men were sufficient. The statement itself is qualified. Plaintiff, as we have seen, stated several times that four men were necessary, and his evidence in this behalf should be taken in its entirety. This statement of plaintiff was for the jury to consider, along with the rest of his testimony, and the testimony of the other witnesses. The evidence on this branch of the case tends to show that the force was insufficient to transact the business required, and was, at least, sufficient to carry the question, along with that of a contrary tendency, to the jury for their determination.

A further objection urged, and which we may consider in this connection, is that the evidence fails to establish any legal connection between the injury to plaintiff and defendant's alleged negligence in not furnishing the necessary number of laborers; that "there is nothing in the testimony to show that plaintiff's going in between the cars to turn the link and prepare the coupling in any manner grew out of the failure of the railway company to have a sufficient number of employes in said yard, or that any accident happened in consequence of his going between said cars." In this objection, as thus stated, defendant misconceives, as we believe, the case plaintiff seeks to make. The evidence shows that plaintiff gave a timely and proper signal for the train to stop...