78 Mo. 195 | Mo. | 1883
John Flynn was an engineer on defendant’s road, running a passenger train to and fro between St. Joseph and Council Bluffs. He was killed by the upsetting of his engine on defendant’s road on the 23rd day of August, 1875. The plaintiff is his widow and sues for $5,000 damages. The grounds of negligence alleged in the petition are the bad and defective condition of defendant’s railroad track at the point of disaster; the defective condition of the flanges of the -Wheels of the engine; the defective and unsafe condition of the air brakes and defendant’s failure on notice to repair them, and its neglect and failure to provide the train with sufficient brakemen in the absence of the air brake. The answer tendered the general issue, and pleaded contributory negligence on the engineer’s part.
The evidence showed that Flynn was a competent and experienced engineer, and made three trips a week over this
For the plaintiff the court gave the following instructions :
1. If the jury find from the evidence that the road bed or track of defendant, at the point where the engine in charge of said John Elynn was thrown off the track, was .defective or unsafe, or that the said engine at the time of the accident was defective or unsafe, and that defendant knew thereof, or might have known thereof by the exercise of reasonable care and diligence, and that the said engine so in charge of the said Elynn as engineer was so thrown off the said track in consequence of said defective condition of said track or of the said engine, after such defective condition of said track or said engine was known or ought to have been known 'by defendant, and that said Elynn received injuries in consequence of said engine being thrown off the track as the result of said defective condition of said railroad track or engine, of which said Elynn died, and that said-Elynn was exercising ordinary care and prudence at the time he received said injuries, and was guilty of no negligence directly contributing thereto, and if they farther 'find from the evidence that plaintiff was the wife of said Elynn at the time of his death, then the jury will find for the plaintiff in the sum of $5,000.
2. Although the jury may find from the evidence that the track of defendant, at the point where the engine was thrown off, was unsafe or dangerous, or that the engine was defective or unsafe, or that the same was known to the
The court then gave for defendant the following instructions :
3. If the jury believe from the evidence that the death of John Elynn was caused by the negligence or want of care on the part of the brakemen on the train in proof, the jury will find for defendant.
4. If the jury believe from the evidence that the notice in proof purporting to be signed by J. E. Barnard, as superintendent of defendant, was so signed, and that said Barnard was superintendent as aforesaid at the time of signing the same, and that deceased knew of said notice before the accident in proof, and said notice was in force at the time of the accident, and said accident occurred between Nishnabotna and Phelps by reason of a defect in defendant’s track between said points, and by reason of his failure to modify the speed of the train, then the jury will find for defendant.
7. If the jury believe from the evidence that after said air-brake ceased to work, deceased informed the conductor of the train in proof at Council Bluffs that said brake would not work, and that said conductor must tell the brakemen of the train and the baggage master that they would have to break the train by hand to St. Joseph, and did not ask for additional brakemen, and that said conductor did accordingly direct said bralceman and baggage master to break said train to St. Joseph by hand, then defendant is not rc
9. If tbe jury believe from tbe evidence tbat tbe negligence or carelessness of deceased directly contributed, either in part or in whole, to bis death, they will find for defendant.
10. If tbe jury believe from tbe evidence tbat at tbe time of tbe accident tbe engine or train of defendant was in such condition tbat with reasonable care it could be used with safety, then for any injury caused by any defect in such engine defendant is not liable, and as to such injury they will find for defendant.
11. If the jury believe from tbe evidence tbat at tbe time of tbe accident tbe engine or train of defendant were in such condition that they could not with reasonable care be used with safety, and such unsafe condition was known to deceased, they must find for defendant as to any injury caused by the unsafe condition of such engine or train.
12. If tbe jury believe from tbe evidence tbat tbe track of defendant at tbe time and place of tbe accident was not in such condition as to be used with safety with reasonable care, and that deceased bad notice of such condition, then plaintiff cannot recover for any injuries caused by such defect in tbe road.
13. If tbe jury believe from tbe evidence tbat tbe road of defendant at tbe time and place of tbe accident was in such condition tbat with reasonable care it could have been passed over by tbe train with safety, they will find for defendant for any injury caused by a defect in such road.
The court on its own motion gave tbe following instruction :
If tbe jury believe from tbe evidence tbat tbe afr-brake in proof ceased to work after tbe train in proof left St. Joseph, and tbat it was in tbe same condition when said train left Council Bluffs, and tbe condition of said air-brake rendered tbe running of said engine and train dangerous to
To the giving of said last mentioned instruction the defendant objected and excepted.
The defendant asked a number of other instructions, some of which are immaterial to be passed on, and such as are material will be considered in the proper connection.
As the case must be remanded for re-trial, it is necessary to determine, for the guidance of the trial court, some qriestions raised on other instructions given and refused on the first trial.
The defendant. complains most of the second instruction given for plaintiff, which declared that although Flynn knew of the alleged defect, “yet if the defective or dangerous condition of said track or engine was not of sufficient character that they could not be reasonably .used by the exercise of skill and diligence he did not assume the use of said track or engine at his peril, and was only required to take and was responsible for the care incident to the situation in which he was placed in the use of such track or engine, and whether he exercised such care in the use of said track or engine at the time of the accident, is a fact for the determination of the jury.” Defendant’s counsel insists, for the
The general doctrine between master and servant is now pretty well settled. A person entering the service of another takes upon himself, in consideration of the promised compensation, the natural ordinary risks of his employment, the perils incident to the performance of his work, including the negligence of his fellow-servants. And the master on his part is bound to use ordinary care and vigilance in providing suitable structures, engines, road-tracks and proper servants. Ford v. Fitchburg R. R. Co., 110 Mass. 240, 255; s. c., 14 Am. Rep. 598; Snow v. Housatonic R. R. Co., 8 Allen 441; Flike v. Boston, etc., R. R. Co., 53 N. Y. 549; s. c., 13 Am. Rep. 545; Smith v. St. Louis, Kansas City Northern R’y Co., 69 Mo. 32. The master does not become the absolute insurer of the safety of his servant; nor is he bound under all circumstances to provide for him the most approved or best improved machinery and equipments, or such as are absolutely safe. His care in this respect is ordinary precaution. What is ordinary care cannot be determined abstractly. It is necessarily a relative ' term. It must be measured by the nature of the work to be done, the instruments to be used, the hazard and peril of the situation. The law by “ ordinary care” means simply the caution and vigilance which reasonable and prudent men exercise under like circumstances. Cayzer v. Taylor, 10 Gray 274, 280; 2 Thompson on Neg., 982, 983; Ford v. Fitchburg R. R. Co., supra, 256.
While the servant, by the terms of his undertaking, assumes the risks and dangers of his employment, it must be observed that these are the usual and ordinary risks incident to the particular work in which he is engaged. It does not embrace in every instance casualties and injuries
It .is equally well settled as a general rule that where the servant, having notice of the existence of defective machinery or bad road-bed or track or of incompetent and reckless fellow servants, voluntarily enters upon duty with such instruments and co-laborers, he assumes the risk and cannot recover for any injury resulting therefrom.. But this rule, if it would be inaccurate to say has its exceptions, yet its application is more or less controlled and varied by the special facts and circumstances of the case. In other words, the law is and ought to be a rational science, furnishing a system of practical rules, working always in harmony but possessing such flexibility as to secure in each particular case as exact justice as is possible. So, if a servant takes employment on a railroad, knowing that his fellow-servants are unskillful and careless, he could not, in case of injury resulting therefrom-, insist on a right of recovery based on the rule of the duty of the company to select prudent and discreet servants. So, if he knows that
Again, take the case now under review. It appears from the evidence that the engine furnished deceased to make the trip with had not been, used theretofore by him. It was the duty of the company to furnish him one reasonably safe and in good working orderl He looked over it before starting out, and it was apparently efficient. On the way the air-brake proved defective and useless. Suppose the engineer did' not consider his train so easily, managed without it, would the law, or court, or common sense j ustify him, en route, in abandoning his assigned post of duty and leaving his engine and the train of passengers on the track, at the peril of losing his position, when, with the assistance of brakemen and ordinary care he had every reason to believe he could safely go through ? He would be esteemed by all railroad men as recreant to his high trust and wanting in that staid judgment and nerve which is the basis of a character suited to the responsible office of an engineer.
The observation of Napton, J., in Keegan v. Kavanaugh, 62 Mo. 232, is quite appropriate: The primary duty of the servant is obedience, and it is not to be expected that he will, upon mere imaginary danger, of which he may be conscious, assert his right to relinquish his employment. He naturally looks to his employer for the observance of all reasonable and proper precautions, and his continuance in the service, when such precautions have not been observed, is rather to be attributed to confidence reposed in those to whose superior judgment he yields. If the risk is such as to be perfectly obvious to the sense of any man whether servant or master, then the servant assumes the risk. But if it is a case where no such obvious risks are incurred, and where it was fair to presume that the employer had been guilty of no negligence, the rule in law as well as common sense and justice is, that the master Is responsible for damages, if any ensue.” In Patterson v. Pittsburg § C. R. R. Co., supra, 393, this sanie doctrine is
Speaking for myself, I do not approve of the language “ threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill.” This language involves a new rule liable to great misconstruction. It makes the liability of the master dependant on the certainty or uncertainty of injury. Under it, as to those injuries certainly to follow, the servant assumes the risk, and as to those which are uncertain the servant assumes none, the master all, of the responsibility. The term “immediate injury” implies that in such case the servant takes the risk, but when the danger is such that injury cannot or may not occur till some far-distant time, the servant assumes no risk at all. The opinion of the judges in Clarke v. Holmes, supra, expresses more correctly the true idea: “ There is a sound distinction between the case of a servant who knowingly enters into a contract to work on defective machinery and that of one who on a
Applying the law thus ascertained to the facts of this case so far as the air-brake is concerned, it must be borne in mind that it could have had no possible agency in derailing the engine, in the first place. Its disability could only have prevented the earlier arresting of the motion of the engine and possibly prevented its upsetting. Whether it would or not, was a question for the jury. Elynn’s knowledge of its condition would not prevent his recovery, provided he ran the engine under circumstances of prudence and care free from negligence on his part contributing directly to the injury. On the other hand, if the company had exercised due care and inspection in furnishing a rea
As to the condition of the track of the railroad, it was the duty of the defendant to have maintained it in a reasonably safe condition for its employes. The engineer had nothing to do with its inspection and repair. That belonged to other employes of the defendant, between whom and the engineer the relation of fellow-servants did not exist, st> as to exempt the defendant from liability to the engineer for any neglect of duty of the trackmen. On this all the recognized authorities are agreed. The defendant is chargeable for neglect to repair its track when it has notice of the defect or might with the exercise of due care and inspection have discovered the existence of the defect. Notice of this fact to the employes of the company entrusted with the inspection and repair would be notice to the company. Whether the defect alleged in the petition existed, and whether it caused the injury in question, and whether defendant had notice thereof, or might have known of it in the exercise of proper diligence, are questions of fact for the determination of the jury.
The defendant insists that the order issued by the general superintendent was equivalent to notice to the engineer that the road was unsafe, and, therefore, if he continued to^
In addition to this, tbe engineer bad been, running over this road nearly every day, bad passed over it tbe day before. It cannot be said be was guilty of contributory negligence in running over it when hurt. Ford v. Fitchburg R. R. Co., 110 Mass., supra; Lewis v. St. Louis & I. M. R. R. Co., 59 Mo. 495; Snow v. Housatonic R. R. Co., 8 Allen 450. In Patterson v. P. & C. R. R. Co., supra, 394, tbe court says : “ Let it be conceded that tbe switch in ques
Hawley v. N. C.R’y Co., 82 N. Y. 370, is most pertinent. The engineer knew that the road was somewhat out of repairs, yet it did not appear that he knew of the particular defect, or that the danger was very great. He was running, under orders, an engine ahead of a passenger train, and was injured by his engine overturning, caused by the bad condition of the road. The court says: “ While the plaintiff’ knew that the road was somewhat out of repair, and that he incurred some danger in running his engine, it does not appear conclusively that he knew how badly it was out of repair, or that the danger was imminent or very great. Three or four passenger trains, besides freight trains, passed over the road daily, each way, and it does not appear that any other accident had happened from the bad condition of the road. The plaintiff and other engineers had frequently run their engines over the road in the same way in which the plaintiff ran his on the occasion of the accident, and had done so with safety. The plaintiff was ordered by competent authority to run his engine just as he did and he had received assurance that the road would soon be put in repair. We must take into account plaintiff’s position. His business was that of an engineer, and unless he obeyed orders and ran his engine he would have been obliged to abandon defendant’s service. Of one thus situated the law should not be too exacting. We must assume that the officers of the defendant who had charge' of the road and must have known its condition, deemed it safe, and the plaintiff' had the right to rely somewhat upon
Instruction number two, given on behalf of plaintiff, while not subject to the unqualified objections made by the learned counsel, was as an abstract proposition, too- comprehensive, and as a rule of law it could not be of universal application. The instruction ought to predicate as a basis for its application the necessary facts to be found by the jury, and if the jury find them to exist, then they may be instructed that Elynu’s knowledge that the air-brake was disabled and that the track was not in good condition, would not prevent plaintilf’s recovery under the existence of such facts, provided Elynn was not, at the time and place of the injury, running his train in violation of the directions of the superintendent, and was otherwise exercising due care; of all which the jury are to determine from all the facts and circumstances in evidence.
In view of the law arising on the facts of this case, the second, fifth, sixth and eighth instructions, asked by defendant, were properly refused, especially in view of other instructions conceded to the defendant.
The eighth instruction refused was calculated to confound. It submitted a question almost impossible of solution. If the bad condition of the track, the low joint,
The fourth instruction given for defendant ought not to be conceded again unless the proof is different, tending at least to show that Elynn, having knowledge of the defect at the point of the accident, failed to “modify the speed of the train.” The law, out of regard to the instinct of self-preservation, presumes that the deceased at the time was in the exercise of due care, “ and this presumption is not overthrown by the mere fact of injury.” The burden rests upon the defendant to rebut this presumption. Buesching v. St. Louis Gaslight Co., 18 Mo. 229, 233.
The judgment of the circuit court is reversed and the cause remanded for re-trial in conformity with this opinion.
Eor the reasons given in the foregoing opinion, Judges Hough, Norton, Ray and Sherwood were of opinion that the judgment of the circuit court should be reversed and the cause remanded.