109 Mo. App. 493 | Mo. Ct. App. | 1905
This plaintiff was hurt by falling from a flat car in one of the defendant’s construction trains. The train was composed of nine flat cars used for hauling dirt. Five of the cars had four loose planks which were placed on their edges along the sides of the car to prevent the dirt from escaping. The cars had standards on either side about three feet high with forked tops. When dirt was to be unloaded the boards were raised into the forks of the standards and they then extended from one fork to the other, and so remained until the car was to be reloaded with dirt. There were four standards on each side of a car, one near each end and the other two between. The planks were about twelve inches wide and sixteen feet long. The forks were twelve inches deep. On December 4, 1903, plaintiff worked on a car equipped with standards and planks of the kind above described. The next day he began to work on the same car, but later in the day was ordered by the foreman to work on another car next to the one he had first worked on. The train was loaded with dirt that morning, hauled to the place
The main propositions invoked here are that defendant was not guilty of negligence, inasmuch as the boards and standards were suitable for use as they were intended to be used, to-wit; retaining the dirt on the car; that in attempting to use them for another purpose, plaintiff assumed the incident risk, and that he was guilty of contributory negligence in not looking to see if both ends of the board rested in forks before
As to the contributory negligence of the plaintiff, the argument is that he should have looked to see that both ends of the board rested in forks before he put his hand against it, and, failing to look at the loose end, was guilty of negligence as a matter of law. Plaintiff ought to have taken ordinary precautions for his own safety; but we decline to say he was so flagrantly careless in not observing the end of the plank behind him that he ought to be nonsuited. He had no reason to think that end was more insecure than the 'other, or than the other planks on the train were. If a man of ordinary prudence would have thought of such a danger and looked for it, then it was incumbent on the plaintiff to do so. We see no evidence of contributory negligence on the plaintiff’s part. At most, the question was for the jury. The judgment is affirmed.