Yongue v. St. Louis & S. F. R. Co.

• Decision Date: 23 June 1908
• Citation: Yongue v. St. Louis & S. F. R. Co., 112 S.W. 985, 133 Mo. App. 141 (Mo. App. 1908)
• Parties: YONGUE v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

112 S.W. 985

133 Mo. App. 141

YONGUE v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

June 23, 1908.

1. NEGLIGENCE—PROXIMATE CAUSE—CAUSE OF INJURY.

An injured person cannot recover for the negligence of another, unless a causal connection is shown between the negligence and the injury.

2. MASTER AND SERVANT—DEATH OF SERVANT —JUMPING FROM TRAIN TO ESCAPE PERIL.

If the conductor of a freight train jumped from the train to escape the peril in which the company's negligence had placed him, by permitting a defective track, his act was no defense to an action against the company for his death caused thereby.

3. DEATH — ACTIONS — PROOF OF CAUSE OF DEATH.

In a death action, plaintiff is not bound to produce eyewitnesses who can testify exactly how the death happened, but it is sufficient to prove circumstances which indicate that it might be ascribed, with reasonable probability, to the causes alleged.

4. MASTER AND SERVANT—INJURY TO SERVANT —PROXIMATE CAUSE—QUESTIONS FOR JURY.

Whether negligence of a railroad company in permitting a defective condition of its track and brakes was the proximate cause of the death of an employé held for the jury, under the evidence.

5. MASTER AND SERVANT—SAFE APPLIANCES AND PLACE TO WORK—ASSUMPTION OF RISK.

A master must use ordinary care to furnish servants a reasonably safe place to work, and safe appliances to work with, and a servant, by retaining his position after becoming aware of danger in either respect, does not, as a general rule, assume the risk of injury, but only assumes such risks as are incident to his job after the master has fulfilled his primary duty.

6. SAME—RIGHT OF MASTER TO CHOOSE METHOD OF CONDUCTING BUSINESS.

The right of a master to conduct its business in its own way, and use such instrumentalities as it chooses, is not absolute, but circumscribed by its duty to provide for the safety of its employés.

7. SAME — LINE OF DUTY — CONDUCTOR OF FREIGHT TRAIN.

Where a freight train approached a downgrade, and it was necessary for some member of the crew to ride the cars so as to control their speed, and the brakeman, when ordered to do so, refused, an emergency arose which compelled the conductor to undertake the task himself, and he was not acting outside the line of his duty in so doing, where it entailed no neglect of his duties as conductor.

8. SAME—INSTRUCTION—REQUESTS—NECESSITY.

In an action for the death of a railroad conductor, alleged to have been caused by defective brakes, where all the evidence bearing on that question was introduced by defendant, and tended to show that the decedent had examined the brakes to "see they were all right," decedent could not be held by the court to have omitted to inspect, and if any inference could be drawn from the evidence that he had failed to do so, the issue should be submitted by a hypothetical instruction.

9. SAME—RULES OF EMPLOYMENT—DUTY OF SERVANT TO OBEY.

Employers operating a railroad should make rules for its management, to protect employés, passengers, and property, and if the rules are reasonable and known to an employé, he must obey them, and failure to do so, resulting in an injury to him, is negligence, and a defense to his action for damages.

10. SAME—EFFECT OF INFRACTION OF RULES— CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Though a railroad has prescribed rules for the inspection of cars and the handling of defective cars, a minor discretion in that respect is left to employés operating trains; and, in view of the rule requiring employers to use ordinary care to furnish reasonably safe instrumentalities, the question of the breach of the rules by an employé, in an action for his death, is an element of the defense of contributory negligence and is for the jury, where his acts were not obviously negligent.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Death action by Mattie Yongue against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James Orchard, for appellant.

GOODE, J.

This plaintiff declares on sections 2865, 2866, Rev. St. 1899 (Ann. St. 1906, pp. 1644, 1646), for damages for the death of her husband, alleged to have been caused by defendant's negligence. Deceased was the conductor of a train which ran on defendant's railway between the towns of Brownwood and Bloomfield. He was killed on the evening of October 24, 1904, while engaged in the performance of his duties. The train was a mixed one, hauling both freight and passengers. When it reached the station of Zadoc early in the evening, deceased found standing on a spur or side track two flat cars loaded with stave bolts, which were to be taken to Bloomfield, the terminus of the line south of Zadoc, whither the train was going. There had been brought to Zadoc by the train two cars which were to be set out on the side track; and in order to do this, and taken up the two loaded with stave bolts, it was necessary, in the first place, to move the latter cars from the spur and shunt them on the main line to the south, after which the cars intended to be left at Zadoc could be put on the switch. The grade of the road descends from said station to the south for about a mile, the fall in that distance being 60 feet. When cars were to be shunted ahead of the train, as the two in question were, it was the practice to allow them to roll to the foot of this grade, with their speed under the control of brakes, so as to prevent them from running away. They would be picked up when the train moved south. A trainman would go along with the cars and set the brakes to keep their speed in bounds. Two ranks of stave bolts were piled on the two cars in question to the height of 6 feet. These bolts were 52 inches long, and made of oak timber and quite heavy. They were not fastened, but were held in place by standards on the sides of the cars near the ends. The north one of the two cars was much larger than the south one; their respective capacities being 80,000 and 40,000 pounds. At the conclusion of the evidence an order to the jury to return a verdict in defendant's favor was requested and refused. Under the instructions given and the evidence submitted, a verdict was returned for plaintiff for $4,000. No exceptions were saved to the instructions given; and, though exceptions were saved to the refusal of some requested by defendant, the assignments of error in the brief do not call in question the rulings on specific instructions, but relate to supposed errors in the admission of testimony, and to several propositions of law relied on in support of the contention that a verdict for defendant should have been directed. These propositions are lack of evidence to prove defendant's negligence was the cause of the death of the deceased, and, indeed, of any proof about how he came to his death, and that he was shown to have been guilty of negligence contributing to the casualty and to have assumed the risk of injury from the defects of the roadbed and the brakes on the two cars, said in the petition to have been negligently permitted by defendant, and constituting the gravamen of the cause of action. The case laid was that defendant had suffered its railroad to be in an unsafe and dangerous condition from a lack of ballast, and from some of the ties under the rails being so rotten the rails were without sufficient support, which faults caused cars passing over the road to swing violently from side to side as the rails yielded. Negligence was also alleged in requiring the deceased to handle the two cars when the brakes on them were so out of repair they would not hold when set. In consequence of these defects in the railroad and cars it is charged plaintiff's husband was jostled or thrown to the ground, and sustained injuries from which he died in a few hours.

1. We will first notice the facts in proof relied on to establish the negligence of defendant, and that it was the proximate cause of the death of the deceased. Just south of Zadoc the railroad ran through a cut 600 feet long and 8 feet deep, then over a fill about 400 feet long and 7½ feet high, and a little further south over a trestle 100 feet long and 14½ feet high. The track curved rather sharply to the east a short distance below the station, and had a grade of about 60 feet to the mile. There were rotten ties in the roadbed, which would break in two occasionally as trains ran over them, and the track was so uneven as to cause trains running at ordinary speed to rock from right to left with sufficient oscillation to set the engine bell ringing. The brake on the larger of the two cars which were loaded with staves, to be taken into the train at Zadoc, was situate at the center of the north end of the car, and the brake on the smaller or south car was at the northeast corner—the right-hand corner of the north end. Hence the brakes of the two cars were not immediately opposite each other. The rod of the brake on the larger car had been bent, and, moreover, staves were piled about the rod, and in consequence of these facts, the wheel whereby the brake was wound up would only revolve halfway around, and it could not be set tight. The ratchet of the brake on the smaller car was broken off. This ratchet was arranged to catch in notches, in a small stationary wheel around the brake rod on the floor of the car, so as to prevent the chain from flying loose after it was wound up. As the ratchet was gone, the only method of controlling the speed of the car was to hold the brake in place by main strength after it had been set; and the evidence tends to prove it was possible to do this. The foregoing description of the condition of the railroad and brakes agrees with the testimony for plaintiff. That for defendant inclines to prove the track was in fair condition for the quantity of traffic which passed over it, though an expert in defendant's employ refused to testify it was in first-class condition....