Yost v. Union Pacific Railroad Co.

• Decision Date: 05 July 1912
• Parties: CHARLES W. YOST v. UNION PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

149 S.W. 577

245 Mo. 219

CHARLES W. YOST v. UNION PACIFIC RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 5, 1912

Appeal from Jackson Circuit Court. -- Hon. E. E. Porterfield, Judge.

Affirmed (conditionally).

N. H Loomis, R. W. Blair, and Douglass & Watson for appellant.

(1) There was no negligence shown in the construction and maintenance of the switch at which plaintiff was injured. The evidence shows that this switch was of a standard type adopted and generally used on defendant's road, also on numerous other upto-date railroads in this part of the country, and that said switch was in good repair. The only negligence claimed is in the adoption and use of such a type of switch with open spaces on each side of the spread bar and underneath the same. Such adoption and construction of a switch in general use by other up-to-date railroads was not negligence. Grattis v. Railroad, 153 Mo. 380; Tabler v. Railroad, 93 Mo. 79; Smith v Railroad, 69 Mo. 32; Dolge v. Railroad, 119 N.W. 1066; Tuttle v. Railroad, 122 U.S. 189; Illick v. Flint, 67 Mich. 632; Boyd v Harris, 176 Pa. St. 484; Mobile v. Healey, 100 Ill.App. 586; Railroad v. Riley, 145 F. 137. (2) The testimony of plaintiff shows he was familiar with the general character and construction of this type of a switch, knew it was in general use on defendant's railroad, over which he worked, knew there necessarily had to be an open space on each side of said spread bar and underneath the same, to permit the free and uninterrupted operation of this switch and the manner of construction was open and obvious to the eye, and with such knowledge and means of knowledge plaintiff entered into and continued in the service of defendant up to the date of his injury, and had used said switches on many occasions and knew how they were constructed and operated, and he thereby accepted the service as brakeman subject to the risks of injury from the use of such a switch and was not and is not entitled to recover in this action. Tramway v. Nesbit, 22 Col. 408; 1 Labatt on Master and Servant, p. 102; Sweeney v. Envelope Co., 101 N.Y. 520; Hodgkins v. Railroad, 119 Mass. 419; Railroad v. Seley, 152 U.S. 145; Railroad v. Grannon, 90 P. 855; Company v. Devoe, 85 P. 633; Railroad v. Scott, 81 P. 763; Hughes v. Schnabel, 78 P. 623; Mining Co. v. Diefenthaler, 76 P. 981; Harvey v. Mining Co., 70 P. 1001; Ragan v. Railroad, 56 N.W. 612; Batterson v. Railroad, 53 Mich. 125; Gibson v. Railroad, 63 N.Y. 450; Burnham v. Railroad, 68 N.H. 567; Hayden v. Mfg. Co., 29 Conn. 548; Sullivan v. Mfg. Co., 113 Mass. 396; Railroad v. Drescoll, 176 Ill. 330; Lemoine v. Railroad, 177 Mass. 89; Simmons v. Railroad, 110 Ill. 340. (3) (a) The testimony in this case establishes the fact that this type of a switch was in general use on many up-to-date railroads in this country, and was regarded as one of the best kind of switches in use. A master performs his duty to his servant when he furnishes appliances of ordinary character, such as are used in the ordinary usage of the business by reasonably prudent persons engaged in the same line of business. Jackson v. Railroad, 104 Mo. 448; Bohn v. Railroad, 106 Mo. 429; Bradley v. Railroad, 138 Mo. 302; Minnier v. Railroad, 167 Mo. 112; Holmes v. Bradenbaugh, 172 Mo. 64; Chrismer v. Tel. Co., 194 Mo. 208; Brands v. Car Co., 213 Mo. 698; Blundell v. Company, 189 Mo. 558; Higgins v. Fanning, 195 Pa. St. 599; Coyne v. Lounge Co., 222 Mo. 506. (b) Plaintiff had full knowledge of the character and construction of these switches, besides the construction was so open and obvious he could not be ignorant of their construction and the dangers incident to stepping into said open spaces between cars in motion, and there was no negligence in not warning plaintiff of danger, as he agreed to acquaint himself with the switches of defendant when he entered its employ. Quinn v. Railroad, 175 Mass. 151; Machette v. Railroad, 132 Ind. 334; Railroad v. Utz, 133 Ind. 265; Railroad v. Bragmeier, 119 Ill. 51; La Croy v. Railroad, 132 N.Y. 570; Bennett v. Railroad, 2 N.D. 112; Karrer v. Railroad, 76 Mich. 400; Alexander v. Railroad, 83 Ky. L. R. 598; 1 Labatt, Master and Servant, Sec. 416; Railroad v. Emmett, 83 Va. 640; Brooks v. Railroad, 47 F. 687. (4) This case should be reversed because plaintiff assumed the risk of injury from using the switch complained of by him. (a) Plaintiff received the injury complained of in Colorado, and his cause of action, if any, must be determined by the law of Colorado, as it existed at that time. Root v. Railroad, 195 Mo. 367; Fogarty v. Railroad, 180 Mo. 490; Lee v. Railroad, 195 Mo. 400; Minnier v. Railroad, 194 Mo. 308; Elliott v. Railroad, 204 Mo. 18; Newlin v. Railroad, 222 Mo. 375; Alexander v. Railroad, 48 Oh. St. 623. (b) Under the plaintiff's testimony, and the law of Colorado introduced in evidence he assumed the risk of injury from using the switch in question. Railroad v. Difenthaler, 32 Colo. 396; Railroad v. Scott, 34 Colo. 106; Railroad v. De Voe, 36 Colo. 273; Dickinson v. Newhouse, 34 Colo. 232; Jackson v. Railroad, 104 Mo. 448; 1 Shear & Red. Neg. (4 Ed.) 185; Thomas v. Railroad, 109 Mo. 200; Smith v. Railroad, 69 Mo. 32; Flynn v. Railroad, 78 Mo. 203; Fuller v. Railroad, 108 Mich. 690; Tuttle v. Railroad, 122 U.S. 189; Randall v. Railroad, 109 U.S. 478; Kohn v. McNulta, 147 U.S. 241. (5) (a) Plaintiff was guilty of contributory negligence as a matter of law and the court should have directed a verdict for defendant. Moore v. Railroad, 146 Mo. 582; Webber v. Railroad, 100 Mo. 194; Smith v. Box Co., 189 Mo. 715; Hurst v. Railroad, 163 Mo. 309; Touner v. Railroad, 52 Mo.App. 615; Finell v. Railroad, 29 N. E. (N. Y.) 825; Ragon v. Railroad, 56 N. E. (Mich.) 612; Appel v. Railroad, 111 N.Y. 550; Pa. Co. v. Hankey, 93 Ill. 580; Foley v. Railroad, 48 Mich. 622; Tuttle v. Railroad, 122 U.S. 189; Grand v. Railroad, 83 Mich. 564; Dixon v. Railroad, 198 N.Y. 458. (b) Plaintiff received his injury while performing work in direct violation of defendant's rule, 742, and was thereby guilty of such negligence as bars any recovery. Francis v. Railroad, 110 Mo. 387; Schaub v. Railroad, 106 Mo. 74; Darracott v. Railroad, 83 Va. 228; 1 Labatt on Master & Servant, Sec. 365; Railroad v. Grand, 83 Mich. 564; Mathews v. Railroad, 227 Mo. 250; Gleason v. Railroad, 73 F. 647; Railroad v. Craig, 80 F. 488; Lockwood v. Railroad, 55 Wis. 51. (c) There was no evidence showing that defendant waived compliance with the requirement of rule 742 aforesaid. (d) To permit plaintiff to show a waiver of said rule by a violation thereof by himself and some other employees, violates the spirit and intent of the Act of Congress known as the Safety Appliance Act. 27 U.S. Stat. at Large, 531; Gilbert v. Railroad, 128 F. 539. (e) To permit plaintiff to prove a waiver of said rule 742 because he violated the same, violates the terms of his employment wherein he agreed to obey said rules of defendant, and such violation of his contract of employment whereby he received his injury was negligence on his part barring a recovery. Quinn v. Railroad, 175 Mass. 151; Davis v. Company, 34 W.Va. 500; Railroad v. Ryan, 69 Tex. 665; Love v. Railroad, 89 Ia. 420; Railroad v. Finley, 63 F. 228; Railroad v. Stephens, 189 Ill. 226; Railroad v. Snyder, 56 N. J. L. 326; Fluhrer v. Railroad, 121 Mich. 212; Spaulding v. Railroad, 98 Iowa 205; Railroad v. Craig, 80 F. 488; Deeds v. Railroad, 74 Iowa 154. (6) The verdict is excessive. Farnith v. Railroad, 102 Mo. 438; Burdict v. Railroad, 123 Mo. 241; Rodney v. Railroad, 127 Mo. 676; Hollenbeck v. Railroad, 141 Mo. 113; Chitty v. Railroad, 148 Mo. 64; Chitty v. Railroad, 166 Mo. 443; Newcomb v. Railroad, 81 S.W. 1069; Markey v. Railroad, 84 S.W. 61; Phippin v. Railroad, 93 S.W. 411; Brady v. Railroad, 102 S.W. 979; Gidney v. Railroad, 103 S.W. 43. (7) The court should have granted defendant a new trial because of misconduct of counsel for plaintiff in going outside the evidence and stating to the jury that plaintiff was a poor boy without money to get witnesses and that defendant had unlimited means and passes to bring witnesses to the trial. Bishop v. Hunt, 24 Mo.App. 373; Lloyd v. Railroad, 53 Mo. 509; Williams v. Railroad, 123 Mo. 573; Harper v. Tel. Co., 92 Mo.App. 304; Fatham v. Tumily, 34 Mo.App. 236; Holliday v. Jackson, 21 Mo.App. 661; Nichols v. Metzger, 43 Mo.App. 618; Evans v. Trenton, 20 S.W. 614; Brown v. Swineford, 44 Wis. 282; Railroad v. Field, 137 F. 14.

Rosenberger & Reed and Jacob L. Lorie for respondent.

(1) There is nothing for this court to review except the record proper, because no proper exception was saved to the court's action in overruling the motion for a new trial. McKee v. D. G. Co., 152 Mo.App. 241; St. Joseph v. Ensworth, 65 Mo. 628; Harrison v. Bartlett, 51 Mo. 170; Parsons v. Clark, 98 Mo.App. 28. (2) The defendant was guilty of gross negligence in constructing the switch rod at the place where plaintiff was injured in the manner that it did, since it could have so constructed its switch at that point as to have made it a good switch for all practical purposes and at the same time have had it reasonably safe for employees doing switching over it. 20 Am. & Eng. Ency. Law (2 Ed.), 93; Railroad v. Gaines, 54 F. 1001; Railroad v. Ogden, 3 Colo. 499; Wilson v. Railroad, 7 Colo. 101; Railroad v. Burchard, 35 Colo. 539; Railroad v. Reiter, 47 Colo. 417; Rice v. Van Why, 49 Colo. 7; Jones v Railroad, 178 Mo. 528; Hamann v. Bridge Co., 136 Wis. 39; Railroad v. Brady, 45 Colo. 203; Vautrain v. Railroad, 78 Mo. 44; Reichla v. Gunsfelder, 32 Mo.App. 43; Reed v. Railroad, 94 Mo.App. 371; Charlton v. Railroad, 200 Mo. 413; Murphy v. Railroad, 115 Mo. 111; Kelley v. P. W. Co., 107 Mo.App. 490; Huhn v. Railroad, 92 Mo. 444; George v....