Campbell v. Hoosier Stave & Lumber Co.

146 Mo. App. 681 | Mo. Ct. App. | 1910

GOODE, J.

(after stating the facts). — The first instruction given for plaintiff and which we have copied, is said to be erroneous because it did not measure the conduct of defendant with regard to keeping the track in order, by what would have been the conduct of a person of ordinary prudence under like circumstances. This criterion of duty was given in that portion of tbe instruction which referred to the jury the question of the ability of defendant to ascertain by ordinary care the track was in bad order, if, in fact, it was; but was not called attention to in so many words, in that portion dealing with the alleged negligence of defendant in not maintaining the rails and ties in a reasonably safe condition. The language of the instruction at this point is as follows: “And that if you further find from the evidence that the derailment of the car was occasioned by the negligent and careless acts of defendant in not maintaining the rails and ties in a reasonably safe condition,” etc. The first instruction, as we have numbered them, given for defendant, advised the jury the law imposed on defendant as an employer, only the obligation to use reasonable and ordinary care, skill and diligence in procuring suitable and safe ties, rails, cars and machinery; thus putting to the jury the decision of the very issue which is said to have been omitted from the instruction for plaintiff. No definition of the phrase “reasonable and ordinary care, skill and diligence” was given, but none was requested by defendant, which was the party making use of the phrase, and it cannot complain of the omission. And it has been held the use of such expressions as “reasonable care” and “negligence” in instructions granted at the request of one party, without defining them, when a definition is not requested, is not always reversible error on the complaint of the opposite party. This was ruled in an action brought, as this one was, to recover damages for an injury to an employee alleged to have been caused by the negligence of the master. [Johnson v. Railroad, 96 Mo. 340, 349, 9 S. W. 790.] In view of the explicit statement of the law as to the point complained of in the instruction for defendant, we hold the omission to require in the instruction for plaintiff, a finding that defendant had failed to use ordinary care to keep its track in a reasonably safe condition, should not work a reversal; and so it was ruled upon the like point in Deschner v. Railroad, 200 Mo. 310, 333, 98 S. W. 737.

A more serious fault in the form of the instruction for plaintiff, was omitting to require findings that the track was not reasonably safe and its unsafe condition was due to a lack of care on the part of defendant. More explicitly stated, the fault of the instruction is a tendency to convey the impression- that the court assumed the track had become unsafe because of the carelessness of defendant. The charge has not been assailed on this ground, which we mention mainly to say we do not think the language used would admit of general application to tort cases. If the fault had been assigned for error in the present case, it could not have been cause for a reversal in view of the evidence. The proof was uniform as to the bad condition of portions of the track and particularly of the part where the accident occurred, though an unsuccessful effort was made to show it was about like other tracks used for like purposes. No doubt a tram road used only for hauling logs, need not be constructed as well as a freight or passenger railway; but there must be more care used to safeguard workmen from accidents due to the state of the track, than was exercised by defendant. We perceive no room for any other conclusion than the one to which the jury came:.i e., that where the accident occurred the track was not reasonably safe, submerged as it was under water, with broken rails, ties • irregularly arranged and lack of support under them; and that its condition was due to defendant’s want of attention, inasmuch as the force of hands kept at work on it was inadequate. Neither do we see how an inference could be drawn that the car which crushed plaintiff’s leg was derailed by anything but the defective track. The train was moving slowly at the time and no other explanation of the derailment was sought to be shown by the testimony or is insisted on here. That plaintiff was injured in consequence of the derailment was not, of course, disputed.

The defenses mainly relied on were negligence on plaintiff’s part contributing to the injury and an assumption of the risk. As to the latter defense, it is enough to say it was not pleaded in the answer, and if it had been, the law of this State is opposed to the theory that an employee assumes the risk of injury from hazards like the one to which plaintiff was exposed by the condition of the track. It is argued in support of the defense that as plaintiff traveled over the track he should be held to have known the state it was in and to have voluntarily incurred the consequent peril. EQe had not traveled over it, as he said, for more than four months prior to the accident, and, even if he had, the fact would not bar his recovery as a matter of law. [Dakan v. Chase Merc. Co., 197 Mo. 720, 94 S. W. 944.] .

The most that can be said of the defense of contributory negligence is that it was for the jury to pass upon. Really we find no evidence in the record tending to convict plaintiff of any negligence.

The judgment will be affirmed.

All concur.