Brimer v. Chicago, Burlington & Quincy Railroad
85 S.W. 653
Mo. Ct. App.
1905
Check Treatment
GOODE, J.

This рlaintiff was hurt by falling from a flat car in one of the defendant’s construction trains. The train was composed of nine flat cаrs used for hauling dirt. Five of the cars had four loose planks which were placed on their edges along the sides of the сar 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, onе near each end and the other two between. The planks were about twelve inches wide and sixteen feet long. Thе forks were twelve inches deep. On December 4, 1903, plaintiff worked on a car equipped with standards and planks of thе 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 *496where the dirt was needed and there unloaded, the retaining planks being raised and laid in the forks during the unloading of the car. Thе car on which the plaintiff last worked had standards of the ordinary kind with forks at the top, except one standard at onе corner, which had no fork; hence, one end of one of the planks rested on the top of that standard, a fiat surface four inches square, instead of in a fork. The plaintiff was ignorant of this fact, never having worked on that car beforе, nor observed that this particular standard was unlike the others in having no fork. After the train was unloaded, it started back to the spot whence dirt was taken, running at a speed of about twenty-five miles an hour. The day was chilly and the plaintiff stood with his back to the wind and ‍‌‌‌​​‌‌‌​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​​​​‌‌‌‌​‌‌‌​‌​‍to the forkless standard. While the train was in motion the plaintiff, in order to steady himself, put his hand against the plank which had one end in a fork and one end on the top of said standard. When he did so the loose end of the plank slipped off its rеsting place, throwing the plaintiff from the car, breaking his arm and otherwise hurting him. It was shown that none of the workmen on the car knеw of the absence of the fork on the top of the standard until plaintiff had been injured; but the foreman of the crew had knоwn it for several days. It was also shown that the workmen were in the habit of steadying themselves while the train was in motion by putting their hands on the boards and standards. There was a verdict and judgment for the* plaintiff and defendant appealed.

The main proрositions invoked here are that defendant was not guilty of negligence, inasmuch as the boards and standards were suitable fоr use as they were intended to be used, to-wit; retaining the dirt on the car; ‍‌‌‌​​‌‌‌​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​​​​‌‌‌‌​‌‌‌​‌​‍that in attempting to use them for another purposе, 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 *497he put his hand against it. We must decline to accept either.of those propositions. They may he сonsidered together as they are based on the theory that the planks and standards were intended only to keep thе carload of dirt in place, and being reasonably safe for that purpose, the defendant’s whole duty was discharged. No doubt the primary purpose in supplying the car with standards and planks was to retain the dirt; but the railroad company wаs bound to use care to provide its workmen a reasonably safe place to work, and the evidence shown bеyond doubt that this duty was disregarded. When laid in the forks of the standards, as they were in every instance except one, the planks afforded so convenient a means of steadying the standing-workmen as the train moved along, that the men would inevitably put thеir hands against them to resist the jolting of the train. This ‍‌‌‌​​‌‌‌​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​​​​‌‌‌‌​‌‌‌​‌​‍was habitually done, according to the evidence and should have been anticipated by the company, not only as a customary, but as a perfectly natural act. Now in leaving- an end of one plank loose on the smooth top of a standard, while all the other planks securely rested in forks twelve inches deep, the defendant furnished the plaintiff and his co-workmen an unsafe place to work; for the crew properly may be said to have worked in travelling to and fro between the loading and unloading places. At any rate they were in the line of duty. As ordinarily the boards rested in the forks when the train was in motion, and thereby afforded the men a means of supporting thеmselves and a protection against being jolted from the train or jostled about, it was negligence not to have the bоards lodged so they could not slip under pressure of the hand. [Palmer v. Telephone Co., 91 Mo. App. 106; Zellars v. Light Co., 92 Mo. App. 107.] To leave one of the рlanks resting on the smooth top of a standard was certain to ‍‌‌‌​​‌‌‌​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​​​​‌‌‌‌​‌‌‌​‌​‍lead to a casualty. This ruling disposes of the contentiоn that plaintiff assumed *498the risk of injury in using the plank to support himself, which was founded on the idea that he used it for a different purpose from the one it was designed for. Besides being obviously convenient as a support for the standing workmen, they were cоnstantly availed of for that purpose with the defendant’s knowledge and consent.

As to the contributory negligence of thе 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 аgainst 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 plаnk 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.

All concur.