Weldon v. Omaha, Kansas City & Eastern Railway Company

• Decision Date: 07 April 1902
• Citation: 67 S.W. 698,93 Mo.App. 668
• Parties: J. W. WELDON, Respondent, v. OMAHA, KANSAS CITY & EASTERN RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

67 S.W. 698

93 Mo.App. 668

J. W. WELDON, Respondent, v. OMAHA, KANSAS CITY & EASTERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1902

Appeal from Sullivan Circuit Court.--Hon. Jno. P. Butler, Judge.

AFFIRMED.

Judgment affirmed.

Hall & Hall and J. G. Trimble for appellants.

(1) The defective and dangerous condition of the handcar were patent and such as the plaintiff would have discovered if he had been ordinarily observant, in using it, and he was therefore chargeable with knowledge of its condition and he can not recover for injuries caused thereby. Marshall v. Hay Press Co., 69 Mo.App. 256. (2) But the plaintiff was not only chargeable with knowledge of the defective and dangerous condition of the handcar, but according to his own testimony he actually knew that it was defective and dangerous and that injury would likely result therefrom, and yet continued to use the car. He therefore voluntarily assumed the additional risk of the employment and can not recover. Flynn v Bridge Co., 42 Mo.App. 529; Marshall v. Hay Press Co., 69 Mo.App. 256; Devitt v. Railroad, 50 Mo 302; Watson v. Kansas & Texas Coal Co., 52 Mo.App 366; Covey v. Railroad, 86 Mo. 635; Steinhauser v. Spraul, 127 Mo. 541; Halloran v. Foundry Co., 133 Mo. 470; Bradley v. Railroad, 138 Mo. 293; Epperson v. Postal Tel. Cable Co., 155 Mo. 346. (3) The condition of the handcar and the dangers in using it were as well known to plaintiff as to defendants, or better known, and he therefore assumed the risk and can not recover. Watson v. Coal Co., 52 Mo.App. 366; Berning v. Medart, 56 Mo.App. 443; Fugler v. Bother, 117 Mo. 475; Epperson v. Cable Co., 155 Mo. 346; Junior v. Power Co., 127 Mo. 79; Roberts v. Tel. Co., 66 S.W. 155; Harriman v. Kansas City Star Co., 81 Mo.App. 124; Compton v. Railroad, 82 Mo.App. 175; Doyle v. M. K. & T. Trust Co., 140 Mo. 1; Epperson v. Postal Tel. Cable Co., 155 Mo. 346. (4) The court erred in admitting, over defendant's objections and exceptions, the testimony of plaintiff's witness Jeffries, as to what the "straw boss" Brown told him about the boxing being gone and that the car was dangerous. There was no evidence when this was, nor that Brown represented the defendants. McGowan v. Railroad, 61 Mo. 528, 532; Harriman v. Kansas City Star Co., 81 Mo.App. 124. (5) The court erred in admitting the testimony of plaintiff's witness Furlong, as to the condition of the car after the accident. Stalzer v. Dold Packing Co., 84 Mo.App. 565; Hipsley v. Railroad, 88 Mo. 348; Brennen v. City of St. Louis, 92 Mo. 482; Alcorn v. Railroad, 108 Mo. 81; Mahaney v. Railroad, 108 Mo. 191. (6) Plaintiff's instructions are fatally defective, for they nowhere require the jury to find from the evidence that the defendants knew of the defective condition of the handcar, or that by the exercise of ordinary care they might have known of its condition, but in effect they require the jury to wholly ignore and disregard this vital and essential fact. Flynn v. Union Bridge Co., 42 Mo.App. 529; Birtwhistle v. Woodward, 95 Mo. 112; Goetz v. Railroad, 50 Mo. 472; Covey v. Railroad, 86 Mo. 635; Dahlstrom v. Railroad, 96 Mo. 99; O'Mellia v. Railroad, 115 Mo. 205; Siela v. Railroad, 82 Mo. 435. (7) The verdict is clearly excessive and the result of passion, prejudice or sympathy on the part of the jury. Friesz v. Fallon, 24 Mo.App. 439; Empey v. Cable Co., 45 Mo.App. 422; Gurley v. Railroad, 104 Mo. 211, 233; Bertram v. Railroad, 154 Mo. 639.

Harber & Knight for respondent.

(1) Mere knowledge of the defective and unsafe condition of appliances furnished, and that risk is to be incurred in the use thereof, is not, as a matter of law, sufficient to defeat a recovery. Pauck v. St. Louis Beef and Provision Co., 159 Mo. 467; Hamman v. Central Coal & Coke Co., 156 Mo. 232; Compton v. Railroad, 82 Mo.App. 175; Sims v. Railroad, 89 Mo.App. 197; Thompson v. Railroad, 86 Mo.App. 141; Smith v. Coal Co., 75 Mo.App. 177; Huhn v. Railroad, 92 Mo. 440; Steinhauser v. Spraul, 114 Mo. 551; Soeder v. Railroad, 100 Mo. 673; Benham v. Taylor, 66 Mo.App. 308; Warner v. Railroad, 62 Mo.App. 184; Conroy v. Iron Works, 62 Mo. 35; Porter v. Railroad, 71 Mo. 66; Shortel v. City of St. Joseph, 104 Mo. 114; Hamilton v. Mining Co., 108 Mo. 364; Mahaney v. Railroad, 108 Mo. 191; Swadley v. Railroad, 118 Mo. 268; Settle v. Railroad, 127 Mo. 336; Rodney v. Railroad, 127 Mo. 676; Higgins v. Railroad, 43 Mo.App. 547; Hughes v. Fagin, 46 Mo.App. 37; O'Mellia v. Railroad, 115 Mo. 205; Schroeder v. Railroad, 108 Mo. 322; Malone v. Morton, 84 Mo. 436; Stephens v. Railroad, 86 Mo. 221; Stephens v. Railroad, 96 Mo. 207; Moore v. St. Louis Wire Co., 55 Mo.App. 491; Coontz v. Railroad, 115 Mo. 669; Foster v. Railroad, 115 Mo. 165; Murphy v. Railroad, 115 Mo. 111; Muirhead v. Railroad, 103 Mo. 251; Tabler v. Railroad, 93 Mo. 79; 2 Thompson on Negligence, 75; Dixon v. Railroad, 109 Mo. 413; Thorpe v. Railroad, 89 Mo. 650; Flynn v. Bridge Co., 42 Mo.App. 529; Wendler v. People's House Fur. Co., 65 S.W. 737. (2) The wholesome and humane rule is that the master must have regard for his employee and furnish reasonably safe and suitable appliances, and further that the employee is not deemed to accept the risk of injury from the unfitness of the machinery or appliances furnished unless the dangers incident to their use is so glaring and palpable that no prudent man would remain in the service. Shortel v. City of St. Joseph, 104 Mo. 114; Mahaney v. Railroad, 108 Mo. 191; O'Mellia v. Railroad, 115 Mo. 205; Warren v. Railroad, 62 Mo.App. 184; Smith v. Coal Co., 75 Mo.App. 177; Wray v. Light and Water Co., 68 Mo.App. 380; Sullivan v. Railroad, 107 Mo. 66; Stienhauser v. Spraul, 114 Mo. 551; Jones v. Packet Company, 43 Mo.App. 398; Benham v. Taylor, 66 Mo.App. 308; McGowan v. Railroad, 61 Mo. 528; Muirhead v. Railroad, 103 Mo. 251; Smith v. Coal Co., supra; Hamman v. Coal Co., supra; Wendler v. House Furnishing Co., supra. (3) Also the duty to supply a reasonably safe place, and reasonably safe appliances "is a continuing duty of the master and a neglect of it is negligence. On entering the employment the servant does not assume the risk of dangers arising from its neglect." Settle v. Railroad, 127 Mo. 343; Wendler v. House Furnishing Co., supra; Railroad v. Spangler, 44 Ohio St. 471; Blanton v. Dold, 109 Mo. 75; Roesner v. Herman, 10 Besell 486; Railroad v. Eubanks, 48 Ark. 460; Hessonger v. Railroad, 91 Ala. 514; Settle v. Railroad, 127 Mo. 343; Gibson v. Railroad, 46 Mo. 163; Huhn v. Railroad, 92 Mo. 447; Soeder v. Railroad, 100 Mo. 681. (4) The contention of appellant to the effect that plaintiff's first instruction is fatally defective in that it ignores the question of plaintiff's knowledge of the dangerous condition of the handcar, is not well taken for the reason that it is not essential that any one instruction should embody the whole law of the case, but it is only necessary that all the instructions taken together should do so. Owens v. Railroad, 95 Mo. 169; Shaw v. M. & K. Dairy Co., 56 Mo.App. 521; Hughes v. Railroad, 127 Mo. 447; Mead v. Railroad, 68 Mo.App. 92, and cases cited; Deweese v. The Meramec Co., 54 Mo.App. 476, affirmed in Deweese v. The Meramec Co., 128 Mo. 423; Reilly v. Railroad, 94 Mo. 600; State v. Mathews, 98 Mo. 125; Distilling Co. v. Creath, 45 Mo.App. 169; Sims v. Railroad, 89 Mo.App. 197; Thompson v. Railroad, 86 Mo.App. 141. (5) Beside, if the instructions given on this question were not as full as defendant desired, they should have asked others amplifying such issue, which they did not do. Tyler v. Larimore, 19 Mo.App. 445; Tetherow v. Railroad, 98 Mo. 74; Mitchell v. Bradstreet, 116 Mo. 226; Coleman v. Drane, 116 Mo. 387; Nolan v. Jones et al., 126 Mo. 159; Haymaker v. Adams, 61 Mo.App. 581; Hyde v. St. Louis Book & News Co., 32 Mo.App. 298; Goss v. Railroad, 50 Mo.App. 614; Bowen v. Railroad, 95 Mo. 268; Steinhauser v. Spraul, 114 Mo. 551; Berning v. Medart, 56 Mo.App. 443; Higgins v. Railroad, 43 Mo.App. 547; Hamilton v. Mining Co., 108 Mo. 364; Covey v. Railroad, 86 Mo. 635; Alcorn v. Railroad, 108 Mo. 81; Herdler v. Stove & Range Company, 136 Mo. 3; Bender v. Railroad, 137 Mo. 240; Gutridge v. Railroad, 105 Mo. 520; Warner v. Railroad, 62 Mo.App. 184; Fogus v. Railroad, 50 Mo.App. 250; Goins v. Railroad, 37 Mo.App. 221; Sims v. Railroad, 89 Mo.App. 197; Thompson v. Railroad, 86 Mo.App. 141; Fisher v. Central Lead Co., 156 Mo. 479.

OPINION

ELLISON, J.

This is an action for damages arising from personal injury received by plaintiff, an employee of defendant, while riding, with other employees, on one of defendant's handcars. The judgment in the trial court was for plaintiff in the sum of $ 4,000.

The accident happened by reason of a defect in the car which caused it to "jump the track." Since the verdict was for plaintiff we will state as facts what the evidence in plaintiff's behalf tends to prove them to be: Plaintiff and several other employees were engaged under the immediate direction and control of a foreman named Bosely and one Brown, who acted in Bosely's place during the latter's absence and who was called by the men, the "straw boss." The defect in the car consisted of the boxing in the wheel being in bad condition, one being out, and the car being otherwise worn. It was old and somewhat shaky and was hard to run. The defective boxing would not be observed except by a special examination. The foremen had each been notified by plaintiff and others that the car was not in proper condition. They replied that all it needed was more effort on the part of those propelling it. They took no steps to have the defects repaired and permitted the men, including plaintiff, to continue its use. Plaintiff had heard the car complained of frequently by his...