37 Mo. App. 221 | Mo. Ct. App. | 1889
The nature of this cáse can best be understood by reference to the pleadings, the substance of which is here given. This suit was begun March 17, 1887. The second amended petition, on which it was tried, states the minority of plaintiff, the appointment of the guardian, the incorporation of defendant and its ownership and operation of the railroad on which the. accident subsequently occurred, and proceeds as follows:
“That on and prior to said day, and at the time of receiving the injury hereinafter mentioned, this plaintiff was employed and hired by said defendant as a common laborer on its construction train, located in said county, and was receiving only the wages of a common laborer and not the wages of a brakeman, and, being so employed and hired, said defendant and its foreman and conductor, under whom plaintiff was working, transferred plaintiff to another train of defendant engaged in hauling rock for defendant in said county, and directed and ordered plaintiff to perform the duties of brakeman on said last-mentioned train; the said defendant and its foreman and conductor then and there well knowing that plaintiff was young and ignorant and*229 inexperienced as to the duties of a brakeman; and plaintiff, in obedience to said orders and directions, was performing the duties of brakeman as aforesaid when he received the injury hereinafter mentioned.
“That on said seventeenth day of August, 1886, at Mercer county, Missouri, plaintiff was injured while discharging the duties of brakeman as aforesaid in coupling said cars, without carelessness or negligence on his part, but through and in consequence of the carelessness and'negligence of said defendant in. this, that it negligently and carelessly provided, used and permitted and directed to be used, in coupling its said train and cars, a certain crooked and misshapen link and pin in the forward end of one of its cars as the same was used in said train, which said link and pin, by being crooked and misshapen, both became and were, and for a long time before said day had been, fast in the forward draw-head of said car as the same was used and run in said train; which said link and pin, by reason of being crooked and misshapen, and fast in the front drawhead of said car as aforesaid, as the said car was used and made up in said train, then and there became and was a very unsafe and dangerous coupling; and, that in consequence of said unsafe and dangerous coupling, link and pin, carelessly and negligently used, provided and maintained by the defendant as aforesaid, plaintiff, being by said defendant and its. foreman and conductor under whom plaintiff was working thereto directed and commanded, in attempting to couple said car having said' unsafe and dangerous coupling pin and link to said moving train, backing up to said car for that purpose, had his right hand caught and crushed by the draw-heads of the said cars he was attempting to couple, thereby causing great and permanent injury to plains tiff’s right hand, crushing and causing him to lose and necessarily have amputated two fingers and a part of a third finger, and á considerable part of the palm of his*230 said right hand, so he became sick, sore and disordered, and so remained for six months, and was, and is and ever will be, permanently disabled in said hand, and prevented, and hindered from making a support and from attending to his own ordinary business and occupation.
“ That the said unsafe and dangerous condition of said link, pin and coupling was, for a long time before plaintiff was injured thereby, to-wit, for ten days, well known to said defendant and its said foreman and conductor who had charge of said train and cars and of plaintiff, and under whom plaintiff was working, or by the exercise of ordinary care and diligence said condition could have been known to defendant and said conductor and foreman, but said defendant and its said foreman and conductor, well knowing of said unsafe and dangerous coupling, link and pin, and of the defects existing therein, and that the same was very unsafe and dangerous to use in the manner aforesaid, or after said condition, by ordinary care and diligence could have been known to them, the defendant carelessly and negligently failed, neglected and refused to repair, or change, or suspend the use of the same, and negligently and carelessly neglected and refused to inspect said car or train to ascertain the defective or dangerous condition of the same.
“That plaintiff was young, ignorant and inexperienced in such matters, and only knew that said link and pin were fast in the drawhead of said car, but had no knowledge and was wholly ignorant of the unsafe and dangerous condition of the same, and did not know that the condition of said link and pin, and its location in the front drawhead of said car, as used and run in said train, rendered it hazardous, dangerous or unsafe to use in coupling cars, as plaintiff was by said defendant and its foreman and conductor, under whom plaintiff was working, ordered and directed to do.”
The answer, after denying all the allegations of the petition not specifically admitted, proceeds':
“Defendant admits—
“1. That said Albert Goins was in the employ of the defendant as brakeman at the time and place stated in said petition.
“That said Albert Goins received injuries in coupling defendant’s cars at about the time and place stated in said petition. But said defendant says that the injuries received by said Goins were occasioned by his own negligence, and not by any fault or negligence on the part of defendant. And further answering said defendant says that said Albert Goins, at all times mentioned in said petition, had full and complete notice of the condition of the link; pin and coupling apparatus referred, to in said petition, and had then and there full and complete notice and knowledge of all dangers and hazards attendant upon using said link, pin and coupling apparatus. But, that notwithstanding said notice and knowledge, said Albert Goins, at the time stated in said petition, . carelessly and negligently attempted to couple said cars without using any care or caution whatever in so doing, whereby he received the injuries referred to in plaintiff’s said petition.”
Plaintiff by his reply denied the acts of contributory negligence set up in the answer.
The case was submitted to a jury, under instructions from the court, a verdict and judgment was rendered for plaintiff, fixing his damages at seventeen hundred dollars; and, after an unsuccessful motion for a new trial, the defendant has appealed to this court.
I. After reading and considering the evidence adduced at the trial, we regard it as tending to prove substantially all the allegations of the foregoing
The law defining, the respective duties of master and 'servant, in this class of cases, is more easily understood than applied to individual cases. On the one hand the master is charged with reasonable care to provide safe and proper machinery and appliances for the use of the servant, and is charged too with ordinary care to keep such appliances in reasonable repair. This care, incumbent on the master, is only such as prudent and careful men engaged in such work would be expected to, and do, exercise. On the other hand, the servant, in entering upon the employment, assumes all risks, or perils, ordinarily incident to the nature of his engagement. The servant has the right to rely on the master’s ordinary care that reasonably safe appliances are provided, and that they are kept in a proper state of repair. If then the master is remiss in his duty— fails, for instance, to use proper care in providing reasonably safe machinery, or fails in the exercise of due care in' repairing defective appliances, and the Servant, while exercising ordinary care, is injured by reason of the master’s neglect, then the servant may recover. The existence of negligence on the part of the master, however, does not warrant recovery by the injured servant, if the injury resulted proximately from the want Of ordinary care by the servant.
If the master supply defective machinery, and the servant know it, and know of the dangers to which he is exposed by reason thereof, and yet continue his work without objection, then the servant cannot recover for injuries thereby and thereafter received. If the risk is such as to be obvious to any one, using his senses, then it will be presumed, ordinarily, that the servant took notice thereof, and, by continuing the work without objection,' he ■ assumes the risk of such defective machinery. Aldridge's Adm'r v. Midland Furnace Co.,
While knowledge by the servant of the defect in the machinery will, ordinarily, preclude recovery for injuries thereby inflicted, yet, in the language of the supreme court, in Dowling v. Allen, supra, “we think the doctrine equally well settled by the authorities, that although the machinery, or that, part of it complained of as especially dangerous, is visible, yet if by reason of the youth and inexperience of the servant, he is not aware of the danger to which he is exposed in operating it, it is the duty of the master to apprise him of the danger,” etc. “A servant knowing the fact may be utterly ignorant of the risks.” (74 Mo. 17.) So it may be well said, in the case at bar, that mere knowledge on the part of this boy Albert (then seventeen years old) that the drawhead, or coupling appliances, were defective would not defeat recovery, if because of his youth and inexperience in that particular business, he did not apprehend the probable danger attending the use of such defective appliances. On the law as declared in Dowling v. Allen, plaintiff’s instructions numbered one and two were properly given by the court. Indeed we see no reason to condemn any of the instructions given. They fully and fairly declared the law as applicable to the case both for the plaintiff and defendant.
II. Under the circumstances attending the employment of Albert Goins, the court properly enough refused to give defendant’s instruction numbered two. If the boy did not have “ordinary skill and information” in “braking” this defendant has no right to complain thereat. He was hired to the company' as a “shoveler” on the gravel train, and worked in that position for more than a year just prior to this injury.
Without further discussion of points urged by appellants counsel, we hold that this case was fairly tried and submitted to the jury on proper instructions, and shall therefore affirm the judgment.
