183 Mo. 81 | Mo. | 1904
This is an appeal from a judgment in favor of the plaintiff for $5,000, as damages, for injuries sustained by him in a collision of cars on defendant’s street railroad.
At the date of the accident, March 7, 1901, the defendant was operating certain street railroads in St. Louis, one line of which was in Olive street running east and west, and another in Sixth street running north and south.' At that date the Olive street line was operated by cable, the Sixth street line by electricity. Plaintiff was an employee of defendant in the capacity of grip-man on the Olive street line.
The petition alleges that as the train on which' the plaintiff was operating as gripman, going west on Olive street, approached the crossing of defendant’s tracks in Sixth street, there was a car of defendant in Sixth street headed south approaching the same crossing; that by the rules of the defendant company the Olive street train had the right-of-way and it was the duty of the motorman on the Sixth street car to give way and let the Olive street cars pass, but, disregarding that duty, he ran his car aiming to pass the crossing in the face of the approaching Olive street train, with the result that the cars came into collision. For specifications of acts of negligence on the part of the defendant as master, as distinguished from the acts of the motorman on the Sixth street car, the petition alleges that the track was
Tbe answer was a general denial and a plea that if tbe alleged omissions were true they were known to tbe plaintiff before tbe accident and by using them with the knowledge be assumed tbe risk; also a plea that be was guilty of contributory negligence in not looking out for a car on Sixth street, and in not using tbe appliances for sanding tbe rail and stopping tbe car in time to have stopped tbe same and avoided tbe accident.
Reply, general denial.
Tbe evidence for tbe plaintiff tended to show as ■follows:
Tbe brake was in bad order and not effective for tbe ■purpose for which it was designed. Tbe plaintiff’s first trip on that day was in tbe afternoon, starting from tbe ■car shed at 3200 Olive street going west to King’s Highway. On making bis first stop going west be discovered that tbe brake was out of order. Returning, be went east from King’s Highway in Olive to Fourth street, which was tbe eastern terminus of tbe road. At Fourth .street tbe cars bad to be uncoupled to allow tbe grip car to be switched back to take its place in front of tbe trailer to go west again. At that point there was a man stationed whose main work was to couple tbe cars, but gripman were required to report to this man any defect in tbe cars, and be was authorized to order tbe car turned in and another car brought out in its place. This man’s name was Gold. When tbe plaintiff reached Fourth street on bis first trip be reported to Mr. Gold that
The plaintiff in the collision received severe injuries. He was 46 years old and had been in the employ
At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant asked an instruction to the effect that the plaintiff was not entitled to recover, which the court refused and defendant excepted.
The testimony on the part of the defendant tended to show that the brake in the car was in good condition; the gripman who usually ran it and had run it on that day up to the time the plaintiff took hold of it, testified that it worked well, and was in good order. Mr. Richardson denied that the plaintiff reported the car to him as out of order, and there was other evidence tending to corroborate his testimony. ■
The main instruction given for the plaintiff was tQ the effect that if the jury should! find from the evidence that the brake was in bad order and would not do the work for which it was designed, “and if you further believe and find from the evidence that defendant’s starter, Gold, or its foreman, Richardson, knew of said condition of said brake; if you believe and find from the evidence it was in said condition at said time, a sufficient length of time before said collision to have repaired the same, or have had said car turned in, and that they failed to do so; and if you further believe and find from the evidence that said condition of said brake was the cause of the collision; or if you believe and find from the evidence that the employees of defendant in charge of and operating said Sixth street car did not exercise ordinary care in operating the same at the time
There were a number of other instructions given of which there is no complaint.
The court refused two instruction's asked by defendant, and the refusal of them is assigned for error. They will be referred to hereinafter.
I. The first point presented by appellant is that the petition does not state a cause of action, since it fails to state that the defects in the appliances complained of were not known to the plaintiff.
In a suit of this kind by á servant against his master it is not necessary for the servant to allege in his petition that the defective condition of the appliances 'which it is alleged caused the injury were not known to the plaintiff. [Crane v. Railroad, 87 Mo. 588; Young v. Iron Co., 103 Mo. 324.] It is not essential to the plaintiff’s right of recovery that he should have been ignorant of the defect; it is only in case the danger from the defective appliance is so obvious as to render the servant’s act in using it contributory negligence that it becomes a bar to his recovery. [Pauck v. St. Louis Beef & Prov. Co., 159 Mo. 467.]
II. The admission of the evidence as to the kind of business the plaintiff had been engaged in before his employment by defendant and the amount of his earning in such business is assigned for error.
’Where the testimony, as in this case, tends to show that a man is permanently injured and his capacity for earning a living is impaired, it is proper for the jury to
III. Appellant contends that the demurrer to the evidence should have been sustained.
The argument on this point rests mainly on the fact that the plaintiff knew that the brake was in a bad condition.
We have already said that mere knowledge that the brake was defective will not preclude the plaintiff’s recovery. If the condition of the brake was such that the plaintiff might reasonably suppose that he could safely use it by taking due care, he was not- to blame for continuing its use. The servant is also, when in doubt, justified in paying some deference to what his master or his master’s representative tells him about it. In this case the testimony shows that Mr. Gold and Mr. Richardson both assured him that he could use it, that it had been used with safety by the other gripmen. Mr. Gold also told him that the sand car would come along and sand the track. With these assurances his act in using the appliance was not so obviously dangerous as to authorize the court to pronounce his conduct negligence as a matter of law. Besides these assurances, the testimony of the defendant tended to prove that the brake was not in a bad condition at all. Whether it was in a good or a bad' condition was, to some extent at least, a matter of opinion. The jury had a right to credit the other gripman, who testified that it was in a good condition, with honesty in the expression of his opinion, yet believe that he was mistaken in that opinion, and yet conclude that his testimony was sufficient to show that
Knowledge that the brake was defective certainly did impose on the plaintiff the duty of observing increased care in its use, .but the evidence shows that he did everything possible that could be expected of a careful man in his situation.
It is said that the plaintiff saw that the motorman was looking to the west, paying no attention to the plaintiff’s train coming from the east, and the plaintiff was, therefore, negligent in moving forward. The testimony was that the motorman turned his face to the west and in the same instant applied the power, and the plaintiff immediately brought all the appliances within his reach into action to stop the train, but could not do so.
There was no error in overruling the demurrer to the evidence.
IY. There are several objections urged to the first instruction.
a. It is first complained that the instruction assumes that Gold was a vice principal and charges the defendant with notice of what Gold knew in regard to the defective condition of the brake. Perhaps the instruction does assume a fact that depends only on evidence introduced by the plaintiff and should have been left to the jury to find. But that was the testimony of Mr. Gold himself and the defendant made no effort to contradict it. He said that whilst his main work was to uncouple and couple the cars at the Fourth street terminus, yet he also had authority to order a ear turned in when it was out of order and another car brought out in its place and that a telephone was furnished him for that purpose. Strictly speaking it ought to have been left to the jury to say whether he had that authority and if there was anything in the case to east any doubt on that fact we would be justified in reversing the judgment for that error. But Mr. Richardson, the foreman
b. The.next criticism of the instruction is that it defines the duty of the plaintiff to have been to exercise “reasonable and ordinary care as a gripman on said car. ’ ’ The argument is that since the defendant was a common carrier of passengers and its duty was to exercise a very high degree of care for the protection of its passengers, the plaintiff'being employed by defendant in the work of carrying passengers] he impliedly contracted to exercise in the doing of that work that degree of care that the law imposed on the carrier, and that, therefore, it was error to say that he was, in this case, required to exercise only ordinary care. The proposition is not without reason, although there are no authorities cited to sustain it. If the servant’s failure to exercise the high degree of care which his master owed to a passenger should result in injury to a passenger and the master should be required to pay damages therefor, then, in a suit by the master against the servant for failure to do his duty, the point now made by appellant would seem unanswerable. But where it is the servant only who is injured and the suit is between him and his master, the rule has usually been to measure the duty of each to the other by the standard of ordinary care. The ingenious argument of the learned counsel leads to this thought, that is, if we should say that the duty of a servant of a carrier of passengers, in the dangerous position of gripman or locomotive engineer, was to exercise for his own safety the highest degree of care practicable among experienced and careful men in that business, a case might arise in which there would be a conflict between the duty the servant owed himself in the face of danger and that he owed the passengers under his care. There are instances within the com-
But that is an abstract proposition in this case,, because, whatever may have been the degree of care-this plaintiff ought to have exercised, the evidence-shows that he did not fail to reach the highest degree.
c. The next criticism is that the instruction ignores the plea that the plaintiff “assumed the risk.’’ The-servant assumes the risk of the danger incident to the employment, but he never assumes the risk of the master’s negligence. If his master furnishes him unsafe-implements and he uses them, knowing them to be unsafe, a question of contributory negligence arises, but. not of assumption of the risk. [Pauck v. Beef Co., supra; Curtis v. McNair, 173 Mo. 270; Parks v. Railroad, 178 Mo. 108.]
d. The instruction authorizes a verdict for the plaintiff, if the jury find that the cause of the injury was the result of the combined negligence of a fellow-servant and that of the master.
There is no error in that feature of the instruction.
The suit is bottomed on the negligence of the master and the instruction in the particular now under discussion is only in effect saying that if the master was-negligent, it is no excuse that the negligence of a fellow-servant of the plaintiff contributed with that of the-master to cause the injury. [Deweese v. Mining Co., 54 Mo. App. 476, s. c., 128 Mo. 423; Young v. Iron Co., 103 Mo. 324; Browning v. Railroad, 124 Mo. 55.]
There is no error in the first instruction.
V. One of the instructions asked by defendant and refused was based on a theory which we have already discussed; it was in effect that, whereas the law imposes on the carrier a very high degree of care for the protection of the passenger, the contract of employment
The other refused instruction was to the effect that though the car and track were defective, yet, if the plaintiff knew it he can not recover “unless you find that the defendant promised to repair the same and the plaintiff continued to use the same in reliance upon such promise, and before the expiration of a reasonable time after such promise was made (if there was such promise) the plaintiff was injured on account of such defects.” There was no such issue as that presented by the evidence in the case and it would have been error to have given that instruction. There was no.promise to repair and hence no reliance on such promise. “What the plaintiff did rely■ on was the assurance of Mr. Gold and Mr. Eichardson that the car could be used with safety as demonstrated by the fact that others had used it.
The rest of that instruction which is to the effect that, the plaintiff knowing the defects, it was his duty to be mindful of them and exercise the care that the condition required, was amply covered in other instructions given.
We find no error in the record. The judgment is affirmed.