129 Mo. App. 576 | Mo. Ct. App. | 1908
Plaintiff sued for damages for personal injuries alleged to have been caused by the negligence of defendant and recovered judgment in the circuit court. Defendant brought the case here by appeal and presents a number of grounds for a reversal of the judgment, among them the contention that its request for a peremptory instruction in the nature of a demurrer to the evidence should have been granted.
Plaintiff was a member of a crew employed by defendant, a railroad company, in the operation of a steam pile driving machine. His principal duty was to cook for the crew but when not thus employed, he was required to work as a laborer on or about the machine. On the day of his injury, March 10, 1906, when his work of serving the noon meal was finished, he was directed by the foreman to work on the pile driver. A pile had just been raised by the machine and stood between the leads in a position where hand power was required to shift its top to a place where it could be covered by the hood, preparatory to being driven by the hammer. The machine had an ordinary flat car for its base. The
The charges of negligence pleaded in thepetitionand submitted to the jury relate, -first, to the maintenance of worn and defective friction shoes; second, to the premature giving of a signal to lower the hammer while plaintiff was in a position of danger; third, to the absence from the machine of a safety appliance called a hammer
The answer, in addition to a general denial, contained the plea that the injury was received as the “direct and sole result of plaintiff’s carelessness and neglect in placing his hands upon the top and side of said piling mentioned and described in plaintiff’s petition and in placing himself in a dangerous and hazardous position unnecessarily and without cause or excuse,” and further that “if plaintiff’s injuries were the result of the negligent acts of defendant’s bellman as alleged in said second count, which allegation defendant expressly denies, then said acts were the acts of plaintiff’s fellow-servant and for such acts the defendant is not liable,” In the instructions, the three charges of negligence we have mentioned were submitted to the jury as issues of fact, as was also the issue of contributory negligence.
We are of opinion the facts stated justified the trial court in submitting the issues raised by the allegations that the injury was the direct result of the negligence of defendant in operating a machine with defective friction shoes and of the negligence of plaintiff’s fellow servant in signalling the engineer to lower the hammer while plaintiff was in a position of danger. Clearly, the latter act cannot be regarded otherwise than as a direct cause of the injury since without the signal, the engineer would not have started the hammer' in its descent. It -was being- held securely at rest by the dog and ratchet and could not be moved until they were released by the engineer. It does not appear why the fel
The defense that the master cannot be held liable for the tort of a fellow-servant is not open to defendant. Section 2873, Revised Statutes 1899, provides “That every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, it may be shown in defense that the person injured was guilty of negligence contributing as proximate cause to produce the injury.” This section, as construed by the Supreme Court in Callahan v. Railroad, 170 Mo. 473, and in Sams v. Railway, 174 Mo. 53, by this court in Stubbs v. Railway, 85 Mo. App. 192, and by the St. Louis Court of Appeals in Orendorff v. Railroad, 116 Mo. App. 348, applies to the class of service in which plaintiff was engaged. In Callahan v. Railroad, supra, Judge Marshall, after exhaustively reviewing the authorities, reached the following conclusion :
“Under the language of our statute it is necessary for the injured employee to show that he was injured ‘while engaged in the work of operating such railroad.’ Construed either by its own terms or in the light of the cases cited from other jurisdictions, it results in holding that the right to recover is not limited to cases where the injury is inflicted by the negligence of a fellow-servant while actually moving a train or engine, but that the law embraces all cases where the injury is inflicted upon an employee while engaged in the work of operating a railroad, by reason of the negligence of any fellow-servant who is likewise engaged in the work of*584 operating a railroad, and that the term ‘operating such railroad’ includes alb work that is directly necessary for running trains over a track, and that it includes section hands who are engaged in working upon, repairing or putting in shape' the track, roadbed, bridges, etc., over which the trains must run.”
In the present case, the work being prosecuted was that of repairing or reconstructing a bridge over which defendant’s track was laid and, under the definition just quoted, it must be regarded as work performed in “operating such railroad.”
On the hypothesis, supported by evidence, that the brake shoes were unsafe on account of their worn condition and that defendant had time, in the exercise of reasonable care to have discovered the defect in time to have repaired it by the employment of reasonable diligence, the jury was entitled to draw the further conclusion that defendant was guilty of negligence in failing to remedy that defect. It is the duty of a master to exercise reasonable care to provide his servant with a reasonably safe place in which to work and with reasonably safe tools and appliances with which to work. Or, to state it differently, the master, by negligent acts of omission or commission, must not increase the natural hazards of his servant’s employment. That the defect in the brake shoes was a direct cause of the injury indisputably appears from the evidence introduced by plaintiff. After the dog was disengaged from the ratchet wheel, the whole weight of the hammer and hood was thrown on the drum and from it to the friction clutch. But for the defective condition of the shoes, it is fair to presume the clutch would have performed its office, the hammer would have descended slowly and that both plaintiff and the engineer might have been warned in time for the latter to have stopped the descent of the hammer and for the former to have withdrawn his hand from the top of the pile;
Further, it is argued by defendant that we should declare, as a matter of law, that plaintiff himself was guilty of negligence which directly contributed to his injury. We think, under all the circumstances of the case, the question of contributory negligence was an issue of fact. Much stress is laid by both parties on the issue of whether or not plaintiff was experienced in the work of operating a railroad pile driver. But should we concede that he was experienced, as defendant contends, we do not think such fact would greatly aid its position. Whether a skilled or green hand, plaintiff had a right to indulge in the presumption that defendant had performed its duty of master and that his fellow workman would not act negligently in a way to endanger his safety. In other words, he was justified in presuming that the hammer neither would be dropped nor lowered slowly while he was within range of its action. It was for the jury to say whether he was negligent in failing to hear the signal and to. withdraw his hand from the top of the pile. This very situation was before the Supreme Judicial Court of Massachusetts in McPhee v. Scully (89 N. E. 1007), where it was said: “The placing of his hand upon the top of the pile, directly in the line of descent of the hammer if it should fall, is the act which defendant contends should charge the plaintiff with contributory negligence. But the fall of the ham
We find that prejudicial error was committed by the learned trial judge in submitting to the jury the issue of whether the injury was caused in whole or in part by the failure of defendant to maintain and use a toggle on the machine. The absence of this appliance did not and could not in any way have contributed to the injury. Its only office was to support the hammer and hood while not in use and thereby to relieve the hoisting and safety appliances from the unnecessary strain of supporting them during periods of inactivity. Had a toggle been employed on this occasion, necessarily its support would have been withdrawn before the hammer began its descent. Its function of holding the hammer and hood stationary was fully performed by the dog and ratchet which, it is admitted, were free from defect. Whether the burden of supporting the weight was borne by one appliance or the other, the support had to be removed in order to menace the safety of plaintiff and the negligent act of causing it to be removed prematurely and the defect in the. mechanism for lowering the load were the producing causes of the injury. The negligent act of running the machine without a toggle, if it existed, could not have cooperated with these producing causes and, obviously, could not have been an independent cause. In submitting this issue to the jury the court, in effect, declared that there were facts adduced by evidence from which the jury reasonably might infer that the absence of the toggle had a direct effect in the production of the injury. A declaration of this character which is unsupported by substantial evidence must
Other assignments of error are discussed in the briefs but in what has been said, we have sufficiently disposed of the case. Before it is retried, plaintiff should amend his petition to conform to the views expressed.
The judgment is reversed and the cause remanded.