182 Mo. App. 380 | Mo. Ct. App. | 1914
Plaintiff was foreman of a switching crew in defendant’s railroad yard in that part of Kansas City, Missouri, known as the East Bottoms.
So far as this case is concerned, the railroad yard in question contains parallel tracks numbered consecutively from one to twenty-two both inclusive, all connected, by proper switch facilities, with a single track called the “lead track” or “North Tard lead track.” This lead track ran practically east and west and the numbered tracks ran off from it in a general northwest direction at such an angle that cars or trains of cars could be brought along the lead track and pushed on to any particular switch track desired, or a train
Prom the switch of track Nb. Tl, measured east along the lead track, to the switch of Track No. 1 was about fifteen car lengths or about 540 feet. Track No. 1 was the “repair track” on which cars were set which the inspector found were out of order. There they would be repaired by men engaged in that work. The particular track upon which a.ear should be put was designated in some way on the car. Those needing repairs and having to go upon track No. 1 or the “rep track” as it was called, were designated by a placard tacked thereon bearing the words in bold letters ‘ ‘ Bad order.” On this card in ordinary script was written the nature of the defect and of the repair to be made. It was the duty of the switchmen to place cars bearing these “bad order” Gards upon the “rep track,” but the writing thereon specifying the nature of the defect and of the repairs to be made was for the repair men and not for the switchmen, and the latter were not required as a part of their work to read this part of the card.
About 4:30 p. m. February 13, 1912, plaintiff and his crew were engaged in “breaking up” a train of cars standing on track No. 11. The engine backed from the lead track on to said track No. 11 and coupled on to the nearest end of the cars, (which in railroad parlance was the east end). Plaintiff uncoupled fifteen of the cars from the rest, (that is, he uncoupled the connection between the 15th and 16th cars). This left the engine attached to a string of fifteen cars ready to go
The two cars at the west end of this string and farthest from the engine were flat cars loaded with long, heavy, piling or logs. These logs were too long to be loaded on one car, so they were placed on the two cars, making what is known as a twin-load, with the ends of the piles about the same distance from the ends of the cars. 'On these two flat cars was a “bad order” placard, and the switchmen were therefore required to place these two cars on track No. 1,-the “rep track.” To do so the entire string of fifteen cars had to he pulled out of track No. 11 on to the lead track and taken east thereon past the switch to track No. 1, and then after this switch had been opened the engine would back the string in upon track No. 1 where the two cars would be left.
After the string of fifteen cars had been uncoupled from the others as above stated, the engine started out with the fifteen cars upon the lead track on its way to track No. 1. It was plaintiff’s duty, as soon as he had uncoupled the string and it had started, to ride on the string down the -lead track till he reached the switch to track No. 1, and then drop off while the train was yet going east, and after it had fully passed the switch at track No. 1, to open said switch and give the signal to back in upon said track 1. Plaintiff sprang upon the journal or oil-box at what a layman would call the hub of one of the front wheels on the south side of the second of the two flat cars, (being the 14th from the engine) and, holding with his hands to one of the standards, (or upright wooden stakes at the side of the car, a number of which were alongside the car to prevent its load from rolling off to the side), rode in this -position west on the lead track till he got in about five car lengths, or 180 feet, of the switch to track No. 1 when the fifteen cars and engine made a
For this injury plaintiff brought this suit alleging negligence upon the part of defendant in several particulars the most important of which now are that defendant negligently permitted a train to come onto the lead track and move west thereon at the same time that the switch train was going east, without notifying plaintiff or the crew of that fact, in violation of a custom prevailing in the yard not to allow another train upon said lead track while the switch train was thereon or to permit such other train to come on to ‘said track without informing plaintiff or his crew of that fact; and that defendant negligently failed to give such notice, thereby causing the string of cars on which plaintiff was riding to be brought to a sudden, violent, abrupt, and unusual stop in order to prevent a violent collision; and that in thus negligently and carelessly causing and permitting said string of cars to be brought to such a stop and making the load of piling to shift, plaintiff was, without any notice or warning, caught and injured, all through the negligence of defendant as aforesaid.
There was ample evidence to prove that a train did come upon the lead track and was going west at the time that the switch train was going east thereon; that the stop made was sudden, violent, abrupt, and unusual and was made in order to avoid a collision; that the sudden and violent stop caused the piling, to slide forward and catch and crush plaintiff’s arm; that no warning or notice of the fact that this other train
It seems that the reason the two flat cars were placarded “bad order” was because the inspector discovered that the load of piling thereon had shifted or slipped back (to the west) from where they were originally loaded. And on the placard was written “load shifted” as the specific trouble with the car. Defendant, therefore, insists that plaintiff cannot recover because he voluntarily rode on a car which he knew to be in “bad order” and thereby assumed .the risk attending such act. In taking this position defendant relies upon the case of Hager v. Terminal Railroad Association, 207 Mo. 302, and claims that the principle there announced forbids plaintiff’s recovery.
While the evidence in the case at bar tends to show that the writing on the placard specifying wherein the car was in bad order is for the repair men and not for the switchmen, and that the latter do not stop their work to see what the trouble is, but merely take the placard as notice to put the car on the “rep track;” and while it also tends to show that plaintiff did not know the load had shifted to the west when he got on the car and took hold of the standard; yet the case may be considered, and perhaps should be considered, on the theory that the “Bad order” placard was a notice to him that the car was defective and was also a notice to him of its particular defect, since if he were going ,to ride on that car he owed it to himself to learn wherein the defect consisted.
In the Hagar case the injured servant knew that the car was “off center,” but the decision seems to hold that the placard “bad order” gave him notice
Whether the Hager case announces this principle or not, it is clear that the servant’s work required him to handle “bad order” cars, and that the placard plainly told him that something was the matter with the car. And it would seem that if he chose to get upon that car without knowing what that something was, and was injured as a result of that defect in the usual and ordinary manner of dispatching the business, unaffected by any other independent act of negligence on the part of defendant, then he should be said to have assumed the risk and cannot recover. But if the defect in the car was such that, in the usual and ordinary routine and manner of doing the work, it would not have injured plaintiff and did so only because of defendant’s negligence in a matter wholly independent of and unrelated to the defect, then, it is not seen how plaintiff ca-n be barred of recovery on the ground of assumption of risk, since the servant never assumes the risk of the master’s negligence. Indeed, in the situation last stated, it is the defendant’s unrelated, independent act of negligence, and not the defect in the car, that is the real cause of the injury.
Such is the situation in the case at bar. The load had shifted, that is, it had slid back from where it had been originally loaded. And even if plaintiff was constructively notified of this shifting by the placard, yet the danger apprehended by the inspector from the shifting was not that the load would slip back again into place, but that, owing to change in its location,
In the Hager case, the negligence charged was not an independent act of negligence unrelated to the defective car nor was the injury caused by such independent act. The injury occurred as the sole, direct, and immediate result of the car being “off center” causing it to lean or come much nearer to one side than usual and thereby to crush the switchman’s legs against a bridge support adjacent to the track. The servant not only had constructive but actual knowledge ' of the fact that the car was off center. He got off once fearing to ride thereon, but later got on and was
It is next asserted that there is no evidence showing negligence on the part of defendant. This rests primarily on the claim that the alleged custom of not allowing another train on the lead track without notifying the train crew, was not shown to be general, uniform, certain and notorious in character as to be of any service as a custom or so that knowledge thereof and reliance thereon may be presumed. In the first place, the practice of not allowing a train on the track without, notifying a train crew using or liable to use the same at any moment is so reasonable and necessary to avoid collisions thereon .that it would seem that it would require less evidence to establish such a custom than it would, a custom not so absolutely necessary to safety. In the next place, several witnesses testified that such was the custom and testified to facts which, if true, showed that it was general in that yard, uniform and well known to the employees thereof. In the third place, defendant’s witnesses showed that there was such a well-known custom, but claimed that it did not apply to the lead track but only to a portion of the “air line” track. Such a custom did really exist according to all parties, but the dispute was over whether it covered the lead track. This was a ques
The negligence of defendant may not have consisted- in violently stopping the train since that may have been necessary to avoid a collision. The negligence that is certain consisted in permitting a situation to arise where it became necessary to make such a violent, abrupt, and unusual stop. If the negligence rendered necessary the unusual stop and the stop caused the injury, then there was an unbroken sequence from the negligence to the injury and the former was the proximate cause thereof.
The trial court modified defendant’s instruction No. 1. As requested by defendant it told the jury that if “plaintiff knew that the car on which he was riding was a bad order car and knew that the ear was marked “bad order,” because the load of piling thereon had shifted to- the west and that by reason thereof it was dangerous or liable to shift again if the train was stopped (here the court inserted the words “in the usual and ordinary manner in handling cars in said yard”) and nQtwithstanding such knowledge, attempted to ride on said car by standing on the boxing and holding to a stake from which the piling had separated and that when the train stopped his injury was caused by shifting of the load of piling to the east, then you are instructed that he cannot recover in this case and your verdict must be for the defendant. ’ ’
The refusal of defendant’s instruction No. 6 is complained of. It is as follows: “The court instructs the jury that it is admitted in this case that the car on which plaintiff was riding was plainly marked “bad order” and that plaintiff knew it was so marked, you are therefore instructed that with such notice to plaintiff, it became his duty to ascertain if he could do so from the. said bad order tag or in some other suitable way in what respect the car was in bad order before attempting to ride on the same; and if you further find that he could have ascertained its condition or wherein it was in bad order by an inspection of the bad order tag or the load itself on the car and thereby have ascertained that the load had shifted and that in consequence thereof it was dangerous to ride on the same in the manner in which plaintiff attempted to, and if you further find that the plaintiff failed to so ascertain or to attempt to ascertain the condition of said car and wherein it was in bad order and received his in-, jury while riding on the same by reason of the load shifting to the east when the train stopped, then he cannot recover and this is true even though you may find there was negligence on the part of the defendant in regard to some matters submitted to your consideration in this' case.” It will be noticed that this instruction differs from the others defendant asked. The others contained the condition that if plaintiff knew the car was marked “bad order” “because the load of piling thereon had shifted to the west etc.”
But aside from this, under the principle herein-before announced that the placard was constructive notice to him that the load had shifted, instruction No. 6 is not erroneous because it told the jury that if plaintiff wanted to ride on the car it was his duty to look at the card and see what was the matter. The main and vital error consists in telling the jury that if he
The judgment is affirmed.