Williams v. St. Louis & S. F. Ry. Co.

• Decision Date: 23 December 1893
• Citation: 119 Mo. 316,24 S.W. 782
• Court: Missouri Supreme Court
• Parties: WILLIAMS v. ST. LOUIS & S. F. RY. CO.

24 S.W. 782

119 Mo. 316

WILLIAMS v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1893.

MASTER AND SERVANT — DANGEROUS PREMISES — RISK OF EMPLOYMENT — CONTRIBUTORY NEGLIGENCE.

1. The duty of a railroad company to an employe who may be required to place cars on its repair track is only to use ordinary care to keep such track in a reasonably safe condition for such purpose.

2. Plaintiff had worked as switchman in defendant's repair yard for some years, and had daily switched cars onto a repair track, on the bed of which grass had been permitted to grow for years, as he knew. He also knew that, in repairing, small pieces of wood and iron were liable to fall from the cars in the grass, so as not to be discoverable on closest inspection, but he had never requested that the grass be removed, and the company had never promised to do so. Held, that he assumed the risk of injuries caused by stepping on a small spiral car spring, which was concealed in the grass, and which rolled under his foot so as to cause him to fall between cars which he was coupling.

3. The burden was on plaintiff to prove that defendant's inspector knew, or by ordinary care could have known, that the spring was on the roadbed.

Appeal from circuit court, Green county; C. B. McAfee, Special Judge.

Action by L. M. Williams against the St. Louis & San Francisco Railway Company for personal injuries. From an order refusing a motion to set aside a nonsuit, plaintiff appeals. Affirmed.

Mellette & Frink and O'Day & Travers, for appellant. L. F. Parker and E. D. Kenna, for respondent.

MACFARLANE, J.

This is an action for damages on account of personal injuries received by plaintiff in coupling cars while in the employ of defendant as switchman. The injury occurred in the yard of defendant, used in connection with its repair shops at Springfield. This yard consisted of a number of tracks, some of them used for holding cars brought there for repair. The negligence charged in the petition was that defendant, wholly disregarding its duty to plaintiff, did "so carelessly and negligently keep its said tracks in said yard, by not leveling and grading up the same, but by allowing the same to be uneven, and the rail points loose and not on the same level, and permitting water to remain in pools on said tracks and along the side thereof, and suffering weeds, grass, and pieces of iron, stone, and other debris to accumulate along and upon said track and the sides thereof, as to make the same hazardous and dangerous for plaintiff to perform his duties as switchman. The said defendant, well knowing the dangerous condition thereof, suffered them to so remain for a long time." That plaintiff, while working in said yard in the discharge of his duty, and in the exercise of due care, stepped "onto grass, weeds, and pieces of iron and other hard substances covered by said grass and weeds, and not seen by plaintiff, which caused him to slip and fall in such a manner as greatly to injure him by catching his right hand between the moving cars," by which it was crushed, and amputation became necessary. The answer was a general denial and a plea of contributory negligence. At the close of the evidence of plaintiff the court sustained a demurrer to the evidence, and plaintiff thereupon took a nonsuit, and, after an unsuccessful motion to set the same aside, appeals to this court.

Plaintiff states the circumstances of the injury as shown by the evidence as follows: The evidence shows that the plaintiff at the time of the accident had been in the employ of the defendant some seven or eight years, working in different capacities. At the time of the accident he was switchman in the defendant's yards at Springfield, Missouri, having been acting in that capacity about ten months. The accident, which resulted in the amputation of plaintiff's right hand at the wrist joint, happened on the 23d of September, 1890, while plaintiff was in the act of coupling cars in the performance of his duties as switchman. The place of the accident was in the defendant's yards at Springfield, on one of its switches, and at a point where the track was low. Water was standing on the track between the rails and ties about three or four inches deep. Grass was growing five or six inches long, and lying down along the side of the track, and on the inside of the track between the rails and between the ends of the ties, and extended practically all over the track, except in the middle, where it was worn down more or less. This condition involved a length of twelve or fifteen feet along the track. There were other similar places along defendant's tracks close to this. The grass spoken of had been growing there for three or four years. Plaintiff had walked some little distance along the high place in the center of the track, to keep out of the water, till he came to where the coupling was to be done. The moving car was going at the rate of about four or five miles an hour. It was a damp, drizzly day, and the track, ties, and grass were wet. Plaintiff stepped outside the track, and when he attempted to make the coupling, which he did in the usual and ordinary way, and keeping his eyes upon the car, and not on the ground, he stepped with his right foot on the inside of the track about ten inches, leaving his left foot outside the rail some six or eight inches, and reached to get the link to make the coupling. As he stepped on the inside of the track his right foot rested upon a piece of coil spring about five or six inches long and two and a half inches in diameter, concealed in the grass. The piece of spring rolled...