204 Mo. 61 | Mo. | 1907
This is an action for damages for personal injuries sustained by plaintiff on the 6th day of February, 1902, while in the service of defendant as
The petition, in substance, stated:
That the defendant at the time alleged was a corporation by virtue of law, and used and operated the railway and engines and cars mentioned in the petition, as a steam railroad, in the city of St. Louis. That on the 6th day of February, 1902, at the yards of defendant on Chouteau avenue, east of Tower Grove avenue, in said city, plaintiff was in the service of defendant as a switchman, and a part of his duties as such was to couple and uncouple engines and cars. That on said day, about 9:45 p. m., the defendant’s agent and yardmaster ordered and commanded the plaintiff to couple the engine and caboose with which he was working .to a caboose car attached to another train and detach it therefrom and remove it from the track on which it was. That in obedience to such order and command, the plaintiff and his fellow-employees, with said' engine, was proceeding to so couple said engine and caboose to said caboose car, and whilst the plaintiff, was in the work of making said coupling defendant’s servants in charge of the train to which said caboose car was so attached, negligently caused said train to be backed without' any notice to plaintiff thereof, causing the plaintiff’s right arm to be caught between the coupling apparatus of said caboose cars and to be so crushed as to necessitate its amputation, requiring two amputations of said arm. That the defendant’s said agent and yardmaster was negligent in ordering said train to be backed whilst the plaintiff was engaged in making said coupling, .without any notice to plaintiff, which said negligence directly contributed to cause the plaintiff’s said injuries. That by his injuries so sustained
Defendant’s answer consisted of a general denial, a general plea of contributory negligence, and a general plea of assumption of risk.
It appears from the evidence that plaintiff was an experienced switchman, and as such was employed by the defendant in its Chouteau avenue yards in the city of St. Louis. Said yard's were switchyards, used for making up trains to go out on the main line. Besides the main track there were five other tracks called switch tracks, branching off from the main track at'various intervals, and used for making up trains. One of these tracks led to the scales for weighing cars and was called the scale track; the others were known as tracks Nos. 1, 2, 3, and 4. The general direction of all said tracks was east and west. On the night of February 6, 1902, plaintiff was one of a switching crew of four men employed in making up a freight train of some twenty-five or thirty cars on said track No. 1, the other members of the crew being Tom O’Hara, foreman, Grus Langhoff and Neil McDaniels. The train was about ready to leave the yards when the fact was communicated to James Glaslier, the night yardmaster in charge of the yards, that the air apparatus of one of the cars about midway in the train was defective. He immediately order.ed that the car be taken out and kicked on the scale track, saying, “I will ride it down and have it on the hind end by the time you get coupled up.” In order that the defective
At the close of plaintiff’s evidence and again at the close of all the evidence defendant asked for an instruction in the nature of a demurrer thereto, which wás refused, and defendant duly excepted.
The only point insisted on by appellant for the reversal of the judgment appealed from is that plaintiff was guilty of negligence which contributed directly to his injury.
Contributory negligence is an affirmative defense, and, like any other defense of an affirmative character, the burden is upon the defendant to establish it to the reasonable satisfaction of the jury.
Defendant insists that, according to the evidence, there were three ways by either of which plaintiff might have opened-the knuckle of the automatic coupling: First-, by having the switch engine backed and the draw-heads separated such a distance as would permit him to safely open the knuckle with his hand, if he deemed
. In 1 Bailey on Personal Injuries, Relating to1 Master and Servant, sec. 1121, it is said: “It is a familiar principle which common sense as well as the rules of law ought to teach any one that where an employee of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence.” The same rule is announced in Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 309; Smith v. Box Co., 193 Mo. 715.
But as to whether plaintiff knowingly selected a dangerous way when a safer one was apparent to him was for the determination of the jury. The verdict of the jury was for the plaintiff, the effect of which verdict was that plaintiff did not knowingly select a dan
The question of contributory negligence was presented to the jury by instruction numbered 6, at the instance of defendant. It is as follows:
“The court instructs the jury that although you should find from the evidence that the yardmaster of defendant railway company was guilty .of negligence in giving the order for the coupling of the cars, or if you find that the employees of the defendant in charge of the train which was caused to back against the caboose car which was to be coupled by plaintiff were guilty of negligence in so backing said train against said caboose, yet if you further find that the plaintiff was also negligent in attempting to make the coupling under the circumstances, and that his act in so attempting to make such coupling in any wise contributed to his injury, then he is not entitled to recover in this case.”
As to whether the plaintiff or1 switch crew knew that a ear was to be taken out of the train and thus necessitate a recoupling, the evidence showed that neither the plaintiff nor any of the switch crew knew where the car was coming from which was to be placed between the caboose and the rear of the train, and that none of them knew the object of detaching the caboose. Plaintiff testified that from where he was at work he could see the west end of the train; that it was not customary for engines to work at both ends of the train, and that he never-saw it done before in that yard.
Neal McDaniels testified that he knew nothing of there being anything done at the west end of the train, and that he was not notified that there was.
Gus Langhoff testified that when switching was being done like this was, on the end of a train made up to go out on the road, it was not usual or customary to have the road engine do the switching, and that he
This evidence tends to show that it was unusual to do work as it was done at the time of plaintiff’s injury, and that there was no warning to plaintiff or anything done to apprise him of his danger. The testimony also showed that plaintiff had no control whatever over the róád engine, his work being’ done with the switch engine, which was standing still, obedient to his signal, at the time the road engine backed and bumped the cars together.
We think the evidence clearly showed the yardmaster was negligent in failing to notify the switch crew that there would be a movement of the train while the work of coupling was being done, and thus forewarn them of the danger. .
The instructions are unchallenged, and presented the case fairly to the jury. The verdict is well warranted by the evidence, and should not, in our opinion, be disturbed.
The judgment is affirmed.