117 Mo. App. 11 | Mo. Ct. App. | 1906
Plaintiff’s husband, a locomotive engineer, was killed on February 25, 1904, while in the employ of defendant company. His engine was derailed and toppled over, carrying him under it and crushing him so that he died. The great weight of the evidence goes to show the accident was caused by the breaking of one of the north rails of the railroad track and that the rail broke because a rotten tie gave way under the weight of the locomotive. This tie was immediately beneath a
Much testimony was introduced that the roadbed was in bad condition in the vicinity; that the ballast had been washed out by the pouring down of rainwater from a hill on the' south side of the track and that a great many of the ties were rotten. Defendant’s foreman in charge of that section swore the roadbed needed working-all along and that he had a force inadequate to keep it in good order. His superior, the roadmaster, gave evidence to the contrary.
The negligence charged against defendant was permitting, its roadbed to be in an unsafe condition at the place of the accident, and failing to replace with good ties the rotten ones beneath the rail that broke under the locomotive.
, The answer was a general denial of the allegations of the petition and a plea that the death of deceased was due to his own carelessness; a plea unsupported by the testimony.
A perusal of the record cannot fail to impress anyone with the conviction that deceased lost his life as a direct result of the bad condition of defendant’s roadbed, and that this condition was due to defendants neglect to provide a sufficient section force to keep the .road in repair. It is, therefore, with reluctance that we have yielded to the conviction that prejudicial error occurred in the trial of the cause which requires us to return it for a retrial.
“Q. Did you notice any broken ties? A. No, sir.
“Q. You never? A. No, sir.
“Q. You never noticed any broken? A. No, sir.
“Q. There were no absent ties? A. No, sir.
“Q. Were the ties sound or rotten? A. Sound ties.
“Q. Sound ties? A. Yes, sir.
“Q. Now, could anybody have gone along there,, any workman, no matter how skilled in the working or construction of a railroad, could he have gone along there, if there was anything the matter with them could he have told it by looking at the ties? A. No, sir. .
“Q. It was a fresh break? A. Yes, sir.
“Q. Could anybody, however expert he might be, and however skilled he might be, come along there and
“Q. Then, you don’t mean to say there was no broken tie there at the wreck, do you? A. The wreck had broken up the ties there at the time of the Avreck, yes, sir — there was broken ties Avhen the wreck occurred.
“Q. You don’t Avant the jury to understand that there Avas no broken tie there at the time of the wreck? A. The wreck broke the ties.
“Q. The Avreck broke the ties?' A. Yes, sir.
“Q. When did you get there at this Avreck? A. 9 :30 the next morning.”
Another Avitness (Beard) swore that though the tie Avas decayed under the point in question, the track at the place of the Avreck was in a reasonably safe condition. The section foreman SAVore he had been over the road there on the morning preceding the accident and Avas over it every day or two on an inspection trip, but did not discover any rotten ties. A portion of his testimony Avas the following:
“Q. Did you see that place before this Avreck? A. Yes, sir.
“Q. Was it in a condition that you could detect it when you passed over it, before the wreck? A. I hadn’t detected it, if there Avas anything wrong.
“Q. Did you examine the road? A. Yes, sir, that is my business over the track.
“Q. Now, Mr. Arthur, what are the duties of the section foreman? A. To examine the track and keep it in repair.
“Q. Is it his duty to examine the ties? A. Yes, sir.
“Q. Could you have told this tie, that was broken, that there was anything wrong with it, until after the wreck, unless you had gotten a pick and dug down into it? A. I dont know — I didn’t detect it.
“Q. By the examination you are expected to give, could you have detected it was a bad tie? A. No, sir,
We are far from satisfied that proper inspections were made, or that the' decayed tie which caused the accident could not have been discovered by such inspections, in time to have replaced it with'a good tie and thereby have averted the Avreck. But the foreman himself said he did not khoAv Avhether he could have detected the decay of the tie Avithout a more rigid test than, perhaps, was required, and neither can Ave know. As said, such questions are for the jury when different inferences may be drawn as to what the truth is; and from the evidence in this case inferences are possible that the ties where the wreck occurred Avere all sound; or, if one of them was decayed, that defendant’s trackmen had not been remiss in failing to discover that it was. Hence it should have been left to the jury to say whether the roadbed and ties were in bad order and defendant’s employees knew, or by due care, could have known the fact and remedied it before the accident. If there is no statute on the subject, it is the universal rule, Ave believe, that a railroad company is not an insurer of the safety of its track, even to passengers; but is bound to use great care to keep it safe for their use, and to use ordinary care to keep it safe for the use of employees. [2 Shearman & Redfield, Negligence, sec. 406; 3 Elliott, Railroads, 1268; Gibson v. Railroad, 46 Mo. 163; Lewis v. Railroad, 59 Mo. 495, 504; Bowen v. Railroad, 95 Mo. 268, 276, 8 S. W. 230; Dayharsh v. Railroad, 103 Mo. 570, 15 S. W. 554; Williams v. Railroad, 119 Mo. 316, 322, 24 S. W. 782; Burns v. Railroad, 129 Mo. 41, 52, 31 S. W. 347; Wendell v. Railroad, 100 Mo. App. 566, 75 S. W. 689.]
In Bowen v. Railroad, supra, the facts were analogous to- those in the case at bar. In that case a bridge went down under the weight of a construction train and the plaintiff, who was injured, recovered judgment beloAv for damages. This judgment was affirmed by the Su
Complaint is made of the court’s refusal to exclude a certain voluntary statement by one of the witnesses. This statement should have been excluded and may be on another trial.
The judgment is reversed and the cause remanded.