Hurst v. Kansas City, Pittsburg & Gulf Railroad, 163 Mo. 309

163 Mo. 309 | Mo. | 1901

BUEGESS, J.

This is an action for damages for per-

sonal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant, in whose service he was at the time of the injury, to furnish him a safe place to work. The trial resulted in a verdict, and judgment for plaintiff in the sum of four thousand seven hundred and fifty dollars, from which defendant appeals.

The facts, briefly stated, are that at the time of the accident plaintiff was in the service of defendant as rear brakeman on one of defendant’s freight trains, running regularly between Mena, Arkansas, and Stilwell, Indian Territory, a divisional point, where there were a number of tracks for switching, and other purposes connected with the business of the road. On the morning of August 19, 1897, the train upon which plaintiff was breaking arrived at Stilwell from the south. The road up to this time had been operated for nearly two years, and in March, 1897, Stilwell was made a divisional point, and it became necessary to ballast the defendant’s tracks in its yards at that place, and in filling between the main track and the next one west of it, the defendant had, at the place where the-injury was received, thrown rock, dirt and gravel in piles, with level places between them, and had partially leveled the space between the tracks at this point, but under orders of the roadmaster, had left the dirt scattered in small piles with the center between the two tracks from eight to ten inches higher than at the edges; at the depot and for a considerable distance north (the tracks running north and south with the depot south of where the injury was received), the tracks and grounds between them had been made level, and the dirt, where the injury was received, had been thrown off about two weeks before such injury; the plaintiff had been absent, when this dirt had been thrown off, and while defendant’s employees were working on it; he had never, before the date of the injury, been on the ground in that part of the switch yards, though he had ridden on freight cars into that part of the yard, but had not gotten down from them on to the ground. The testimony showed that the ground between the main track and the one west of it had been raised in the center between the two tracks and sloped towards the main track, with little mounds of earth mixed with stone and gravel by the orders of the roadmaster, and had been so left by his orders. On the day of the injury the freight train of defendant had been pulled into these divisional yards, and, leaving the conductor at the depot, the train, with front and rear brakeman, engineer and fireman, was pulled up into the north end of the yards, and the freight cars switched on to the first track west of the main track, the plaintiff riding these freight cars, setting brakes until the cars were set or stopped, and in the meantime the engine and caboose, with the head brakeman on the caboose managing the movements of the same, were backing slowly at a speed of from five to eight miles down the main track. The plaintiff got off of the cars on the switch track where he had been working, and walking to the main track, stood waiting the coming of the caboose and engine, the caboose being in front of the engine, and with his attention directed to the coming caboose, and when the end came to him, with it going at the rate of from five to eight miles per hour, plaintiff caught hold of the rods of the platform of the caboose next to him, set one foot on the step and, to gain the motion of the caboose, took one or two steps on the ground with the other foot, and at the last step his foot struck or stepped on a stone that rolled under his foot, which threw him down, causing him to let go of the hold on the rods of the platform, and owing to the ground being sloping toward the track, his body rolled down towards the track and his right leg was run over by the wheel of the caboose that was nearest him, but the engine was stopped before the other wheel struck him.

The injury caused the leg to be amputated.

The rules of the defendant forbid all persons boarding engines or cars while in too rapid motion, and the testimony showed “it was the duty of the brakeman in handling cars to get off and on the cars while in motion in the yards.” The rules of the defendant were pleaded and also read in evidence. The evidence showed that an experienced brakeman, in doing work in the yards, could safely get on the cars in motion while going from ten to twelve miles an hour, and that the ground in a switch yard should be level with the end of the ties and between the tracks.

The point is made that upon the entire record there was no evidence to support the verdict.

The right of defendant to do the work of ballasting its yards at Stilwell, is not questioned. Nor can its right to do the work necessary for that purpose in its own way be doubted, provided, when so doing, it furnished its servants a reasonably safe place to work. But defendant insists that the rule which requires the master to furnish his servant a “reasonably safe place” to work does not apply in its entirety to servants employed in the construction of buildings or of railroad yards, and as plaintiff knew that work was being done and changes being made in the yards he must be held to have assumed the risk incident to these changes. But we do not think the facts as disclosed by the record in this case bring it within the rule contended for by defendant, which is based upon the idea that the injured party was in some way connected with the construction of the road, or the work which was being done, either directly or remotely, at the time of the accident, hence, the injured person was held to have assumed the risk incident to changes made in the construction of the work.

This rule, is recognized in Holloran v. Iron and Foundry Co., 133 Mo. 478; Bradley v. Railway Co., 138 Mo. 302, and numerous other eases cited by defendants in their brief. In the case at bar, however, plaintiff had nothing whatever to do, either directly or indirectly, with ballasting the yards, but was a brakeman upon a regular freight train, and if the place where he was injured was not a reasonably safe place to work under the circumstances, and he was injured by reason thereof, he was entitled to recover, unless he assumed the risk or was guilty of negligence which contributed to his own injury.

When an employee has full knowledge of the risks of his situation, and accepts them, he assumes such risks as are incident to their discharge, and if subsequently injured by such risks, he will not be entitled to recover damages for injuries sustained in consequence thereof, against his master, unless “it was not so dangerous as to threaten immediate injury, or, if he might have reasonably supposed that he could safely work about it by the use of care and caution.” [Huhn v. Railroad, 92 Mo. 440; Soeder v. The St. Louis, I. M. & S. Ry. Co., 100 Mo. 673; Mahaney v. St. Louis & H. Ry. Co., 108 Mo. 191; O’Mellia v. Kansas City, St. Joe & C. B. Ry. Co., 115 Mo. 215.]

It is clear from the evidence that the place where the accident occurred was not a safe place for those in the service of defendant in its yards to work. It is equally clear that plaintiff had knowledge of its unsafe condition, and unless it was not so dangerous as to threaten immediate injury, or, if he might have reasonably supposed that he could safely work about it by the use of care and caution, he assumed the risks, and plaintiff’s fourth instruction was in accordance with that theory and free from the objection urged against it.

The testimony showed that the rock and gravel had been placed between the tracks in the usual and ordinary way for the purpose of ballasting the yards, from which alone no reasonable inference of negligence could be drawn, for it was just as essential for tbe safety of its employees and trains as any other part of its superstructure. But although as thus deposited it was dangerous to the employees while at work in the yards, defendant would not have been guilty of negligence in permitting it to remain in that condition until a reasonable length of time had elapsed in which to scatter it or spread it out, but after the expiration of such time, if it was permitted to remain as originally deposited, it was guilty of negligence, and two weeks, we think, was more than necessary for the purpose.

On this question plaintiff, over- the objection of defendant, was permitted to prove by a number of witnesses what would be the proper condition of the ground in a switch yard in order to be in a reasonably safe condition, and in this it is insisted that error was committed. The argument is that the question was not one for expert testimony, but was the province of the jury to determine from the facts in evidence.

The facts are so variant in the many adjudications upon this subject that it would be next to impossible to reconcile them, so that only a few of the more recent decisions of this court upon the subject will be noticed. Namely, Benjamin v. Street Ry. Co., 133 Mo. 288; Goble v. Kansas City, 148 Mo. 470; Dammann v. St. Louis, 152 Mo. 186; Lee v. Knapp, 155 Mo. 610.

The rule to be deduced from these authorities is that ex-* pert testimony is not admissible unless it is clear that the jurors themselves, from want of experience qr knowledge of the subject, are not capable of drawing correct conclusions from the facts proven. Under the facts proven the jurors were just as competent to determine whether or not the ground in the switch yard was in a proper condition to make it in a reasonably safe condition for persons working therein as were the witnesses.

It follows that the court erred in admitting the testimony, but as we are of the opinion that defendant was guilty of negligence in maintaining its yards in an unsafe condition for so long a time after it became its duty to repair them, the error was not prejudicial.

But notwithstanding plaintiff may have been justified in continuing in the service of defendant knowing the danger attending it, yet if he'was guilty of negligence contributing to his injury he was not entitled to recover.

Upon this theory of the case the evidence shows that in the forenoon of the nineteenth of August, 1891, the train upon which plaintiff was a brakeman arrived at Stilwell, from the south. It stopped at the depot and then proceeded towards the north end of the yards, and upon reaching a point near the north switch, the caboose was cut off, the cars were then set on either the first side track to the east or on the first side track to the west of the main line. The engine was then backed down and coupled on to the caboose, where it had been cut off, and then it and the caboose moved together in a southerly direction for the purpose of putting the caboose away on the caboose track. In the meantime, plaintiff was walking along by the side of the main track, and in between it and the side track, when he observed the engine of his train approaching, and when a few hundred feet away it began to slow down for the purpose of stopping in order that the plaintiff might get on. He had control of the train and might have had it stop, so thát he could have gotten aboard with safety, but he signalled the brakeman ■ riding on the south- end of the caboose to go ahead which was communicated to the engineer. The train was at that time moving about sis miles per hour, and when it reached plaintiff he caught hold of both handholds of the south end of the caboose and placed his left foot upon the lower step and took two or three steps with his right foot before swinging on when that foot struck a stone, which rolled under his foot breaking his hold on the rods, and causing his foot to slide or fall under the car, resulting in his injury.

The rules of defendant forbade employees in the train service “to board engines or cars while they are in too rapid motion,” thus by implication at least permitting them to do so, when they were not so running. But all that remained for plaintiff to do for the time being was to place the caboose upon the proper track, there being no occasion for any unusual haste about the matter. He was an experienced brakeman and knew the condition of'the yards, and without permitting the train to slow up, or stop, as he had the right to do that he might get on in safety, he signaled it to go on, and attempted to board it while moving at the rate of six miles per hour.

In Moore v. K C., Ft. S. & M. Ry. Co., 146 Mo. 572, there is quoted with approval from Bailey on Personal Injuries Belating to Master and Servant, vol. 1, section 1121, the following: “It is a familiar principle, which common sense as well as the rules of law ought to teach any one, that where an employee of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence.”

Again in section 1123: “Where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and can not recover.”

Plaintiff had choice of two ways to board the caboose, one that was not dangerous, that is, having the car to stop, the other that was dangerous, that is, boarding the car while moving at a rate of speed of about six miles per hour. He chose the latter.

There was nothing to distract his attention and no excuse whatever for his attempt to board the car at the time and under the circumstances. The rule of defendant did not require him to do so, and having voluntarily chosen the way of boarding the car which was dangerous, he must be held to have been guilty of contributory negligence.

The judgment is reversed.

Sherwood', P. J., and Gantt, J., concur.