127 Mo. 658 | Mo. | 1895
DIVISION TWO.
This is the second appeal in this cause. The judgment was reversed and cause remanded at the April term, 1892. Francis v. Railroad,
Plaintiff’s husband, Charles Francis, was a brakeman in the employment of defendant in its yard at St. Joseph. While engaged in his duty as such, on the night of March 27,1888, he was killed by the switch engine with which he was working. The alleged negligence consists in the employment of an incompetent engineer on the engine and retaining him after notice of his unskillfulness and unfitness. The answer is a general denial, a plea that his death was occasioned by a risk he had assumed in his employment, and contributory negligence.
On the former appeal, the grounds of reversal were the want of any evidence that defendant knowingly permitted its employees to violate the following rule:
“St. Joseph, Mo., May 12, 1887.
“To Foremen, Switchmen and Others:
“It has become quite a practice for the yardmen, as well as others, to jump on and off switch engines while they are in motion, by standing in the middle of the track and stepping onto the footboard.
“This practice must be stopped. Yard and trainmen wishing to get on switch engines must get on from the sides. Parties getting on and off engines while they are in motion do so at their own risk.
“J. R. Hardy,
S. P. Jeffries,
1 ‘ Superintendent.
Trainmaster. ”
And the refusal of an instruction that the said rule was binding on deceased.
The evidence tended to show that this notice was posted up in the roundhouse and in the yardmaster’s office in the middle of the yard. There was a space left at the bottom of the book containing the rule in
I. Counsel for defendant maintain that the demurrer to the evidence should have been sustained. This claim is based principally upon the' fact that deceased was a bright, intelligent man, and an old and experienced switchman; that he had worked all the night previous to his death with Preston, the engineer, and if Preston was the incompetent engineer that plaintiff claims he was, and had demonstrated it on the previous night, then Mr. Francis knew it and he was guilty of recklessness in attempting to board the engine with such an engineer in charge. In a word, that a man of ordinary prudence and care would not have undertaken to get on the engine from between the rails as Mr. Francis did, with such an engineer in charge of it.
The evidence shows that, at the time of this accident, and for a month previous, the engineers of the defendant company were on a strike; that, two days previous to this accident, the defendant had employed Preston, the engineer in charge of the engine which killed Francis. This was the second night Preston had worked in the yards. Francis had worked with him the first night, and was switching for him the second night, when he was killed. There was much evidence that Preston was unskillful and incompetent; that he did not understand the signals in use in the yard, or was negligent in observing them, or incompetent to
The evidence of plaintiff tended to show that, on the night of March 27, 1888, the crew with which deceased was working consisted of her husband, Shannon and Dickey. The engine was a switch engine and had no pilot or cow-catcher, but instead thereof a foot-board which extended across its front which was made for the switchmen to stand on while the engine was moving and while coupling cars on the front end of the engine. The engine and crew had been at work in the yards and had moved north for the purpose of transferring the engine from the passenger to the freight tracks. It was the duty of Francis to open the switch for the passage of the engine to the transfer’ track. He rode on the engine till it had cleared the switch and got off and threw the switch. He was then about twenty-five feet in front of the engine which was-headed south. He signaled the engineer with his lantern to come ahead. The engine moved south over the switch onto the transfer track, at a rate of three or four miles an hour, and Francis stood between the rails, near the west rail, awaiting to step on the foot-board. When it was within a few feet of him, the engineer shut off the steam, and the engine plunged quickly and suddenly forward, and ran over him just as he was attempting to step on it, crushed his legs, and he died in a few hours.
On the part of defendant the evidence tended to-show that the engine passed north of the cross-over and stopped. Francis got off the engine, opened the switch- and the engine moved south onto the cross-over track and stopped. As the engine did this, Francis left the
The evidence shows beyond all question that all the switchmen and the yardmaster were in the constant habit of getting on the switch engine when moving by standing in front of it between the rails and stepping on the footboard as it approached. That the defendant’s officers in charge of the yards knew this hardly admits of question. Under these circumstances and this well established custom the deceased must be held to have assumed the risks ordinarily incident to such dangerous employment, but among those risks is not to be reckoned the danger of injury from an incompetent engineer. The law required of the master ordinary care in the selection of the engineer, and the evidence is over
But counsel for defendant urge that even conceding that Preston was incompetent ■ inasmuch as Francis knew it and complained of him his widow can not recover. This evidence on this point is the same now as on the former appeal, and we then held that the trial court properly submitted the case to the jury on the question of the contributory negligence of deceased. "We are still satisfied that ruling was correct. It was for the jury, under all the circumstances in evidence, to say whether it was such contributory negligence as would bar plaintiff if her husband stepped on the foot-board attached to the engine for the very purpose of having him ride there, in discharging his duties, when it was approaching him. It was for the jury to say whether he might not reasonably have anticipated that the engineer would approach him at such a speed that he might safely get on the engine, as the evidence shows it was universally done in those yards, and that he would not make a sudden and unexpected plunge forward and knock him down. ■ This court can not assume as a fact that no rational man would attempt thus to board a switch engine in the face of this record that all the most experienced and capable men and even the yard master in that yard habitually did do this thing, with the knowledge of those in charge. Had the engine continued to move forward at a reasonable rate of speed until it reached Francis, the evidence shows he could easily have stepped on the footboard without danger. It was necessary that he should accompany the engine and it was not to be expected that it would dash off without affording him an ■ opportunity of getting on. Whether the engineer so- negligently moved
Nor do we think the plaintiff is barred because her husband did his duty in reporting Preston as incompetent. When this complaint was made they were told to go on, they would have to get along the best they could. He had no one to put in his place at the time.
In Hamilton v. Rich Hill Mining Company, 108 Mo. 375, it was said: “Where a servant, it has been broadly stated, continues in the employment after knowledge of a defect.' in the appliance, he thereby waives all objections to such defective instrumentality and takes upon himself all the risks. Such a doctrine makes it the duty of the servant to abandon his contract of employment, because of a breach of duty on the part of the master, and is unjust and unreásonable. Hence, it has been very much modified in many jurisdictions. A like question arose in the Huhn case before mentioned, where an employee of the company was injured by reason of an unblocked guardrail, and a like question arose again in Soeder v. Bailroad, 100 Mo. 673. These cases hold that mere knowledge of a defect in a railroad track will not, as a matter of law, defeat the servant’s action for injuries arising from such defect. Mere knowledge that the appliance is defective and that risk is incurred in its use will not, as a matter of law, defeat the servant’s action, where the danger is not such as to threaten immediate injury, or where it is reasonable to suppose the appliance may be safely used by the use of care and caution.” O’Mellia v. Railroad, 115 Mo. 221; Mahaney v. Railroad, 108 Mo. 191.
And in Railroad v. Mares, 123 U. S. 710, the same rule is announced with reference to an incompetent co-servant. Mere knowledge will not bar a recovery, but it is for the jury, under all the circumstances, to say
So, in this case, although Mr. Francis was entitled by the law of the land to demand of defendant that it should employ a competent engineer to manage the engine with which he was to work, and was convinced that Preston was not such an one, still his fidelity to his employer, who was engaged as a public carrier, demanded fhe should not quit its service without giving it a reasonable opportunity of supplying competent men in place of the strikers, and he might well ■have concluded that Preston would learn the signals and that it was not necessarily dangerous to work with him, and his mere knowledge of Preston's ineompetency will not bar his widow, but it was properly left to the jury to find whether, under the circumstances, he was negligent in attempting to board the engine that night, and they have found otherwise, and their finding will not be disturbed on this ground.
There is no evidence that Francis refused to get on the engine when it was standing still.
II. The first and sixth instructions are assigned as error. They are as follows:
“6. Although the jury may believe from the evidence that Preston was unskillful, incompetent and unable to handle and control an engine, still if they believe that the danger in working with said Preston was not so obvious that an ordinarily prudent and careful man would refuse to work with said Preston, then the fact that Charles Francis may have known of the unskillfulness, ineompetency and inability of said Preston to handle and control said engine, is no defense to this suit.”
Defendant also complains of plaintiff’s second instruction, viz.:
“2. The court instructs the jury that although they may believe from the evidence that the defendant had, prior to the time said Francis was injured, and on or about May 12, 1887, adopted the order or rule read in evidence by the defendant, and that said order or rule had not been rescinded up to the time said Francis was injured, still the fact that there was such a rule or order is no defense to this suit, unless said Francis had notice of the existence of said rule or order, and the court instructs the jury that the burden of proving, not only that there was such a rule or order, but also that said Francis had notice thereof, is upon the defendant.”
Along with this instruction the court gave two others, numbered 11 and 12:.
“11. The court instructs the jury that it was the duty of the defendant to make reasonable rules and regulations for the guidance and- instruction of its switchmen while engaged in the performance of their duty in its service, and it was the duty of the switchmen engaged in its service to use due care and diligence in order to acquaint themselves with such orders, rules and regulations, if placed or posted at the ustial place or places where such orders are posted, as the defendant had promulgated to govern, control and regulate their conduct, and to instruct them as to the manner in which they could perform their duties; and it was the duty of the men in the employ of the defendant to obey such rules so promulgated if they knew of their existence.
Now, there was no direct testimony that the deceased had actual knowledge of the rule or special order, and there was evidence, as already said that all switchmen who read it in the order book in the yard were required to append their names. So that it appeared that Francis had the opportunity to learn of its promulgation and the court instructed that it was his duty to use due care in so doing. These instructions taken together also fully cover the respective obligations of the master and servant. The fact that the notice had been duly posted in the yards and roundhouse was sufficient to admit it in evidence and the court properly declared the law to be that it was the duty of plaintiff’s husband to use due care in acquainting himself with it; it then became a question for the jury to decide, whether, considering the length of time and the place in which it was posted, with deceased’s opportunity for seeing it, he had used due care in so doing. The duty was reciprocal. It was the master’s duty to make and promulgate the rule and enforce it, and the servant’s duty to use care in seeing that he was apprised of the rule. This was the extent of the instructions and they correctly express the law of the case. Covey v. Railroad, 27 Mo. App. 170; Francis v. Railroad, 110 Mo. 387; Alcorn v. Railroad, 108 Mo. 81;
III. There was no error in the third and fourth instructions. There was evidence tending to show that Jeffries, the trainmaster, Cummings, the foreman of the roundhouse, and Smith, the yardmaster, all had notice of the incompetency of Preston and this was sufficient. Williams v. Railroad, 109 Mo. 475.
IY. The defendant complains that plaintiff’s sixth instruction heretofore set out is inconsistent with the ninth instruction for defendant, which in effect tells the jury that if the deceased knew of Preston’s incompetency and had complained of it and still attempted to get on the engine, plaintiff could not recover. This instruction is not the law, and 'as it is an error of defendant’s own procuring, and in his favor, he can not' complain of it here. Baker v. Railroad, 122 Mo. 533; Reardon v. Railroad, 114 Mo. 384; Wilkins v. Railroad, 101 Mo. 105.
Y. Finally, there was no error in permitting plaintiff to prove that it was a common custom and thing for the switchmen and other employees, after the promulgation of the special order of May 12, 1887, to get on the footboard of the switch engine from the front when it was in motion; that it was done with the actual knowledge of Smith, the yardmaster, and Cummings, the foreman of the roundhouse, and there was evidence that the office of the trainmaster, Jeffries, was in the yards where the men worked, and that he was required by his position often to be in those yards and was there, and that the men were nevér reprimanded for breaking the rule. This evidence tended to prove that the rule was habitually violated with the knowledge of the officers of defendant. It was competent and relevant to show that the rule was not in ■ force. Nor is
The case was fairly tried under instructions, most-favorable to defendant, and the verdict is supported by the evidence. There is no error and the judgment is-affirmed.
IN BANC.
Per Curiam. — The foregoing opinion of Gantt, P.. J., in division number two, is adopted as the opinion of the court in.banc, and in accordance therewith the-judgment of the circuit court is affirmed.