193 Mo. App. 495 | Mo. Ct. App. | 1916
Plaintiff sued in a justice court to recover damages for personal injuries lie alleged were caused by negligence of defendant, Ms employer. A trial in the circuit court on appeal resulted in a verdict and judgment for plaintiff and defendant appealed. Plaintiff was" a member of a large gang of section men engaged in repairing defendant’s main tracks in Kansas City, Kansas, and it is concluded
■ The negligence charged in the petition is “that a fellow laborer suddenly and without warning carelessly and negligently lowered the rail causing it to come down on plaintiff’s left foot.”
In their argument on the demurrer to the evidence counsel for defendant attempt to bring the case within the rule that section men whose business is to work upon and repair tracks upon which trains are
This is not a case where the injured laborer was ignorant of the coming of the train and complains of the failure of his master to warn him but is one where he and his fellow laborers knew the train was coming and realized the necessity for ceasing the work they were doing, restoring the track to a safe condition for the use of the train, and then leaving the track before its arrival. The complaint of plaintiff, in substance, is that without giving him an opportunity to change his position which was a proper one and without any warning, a fellow laborer in his haste worked the supporting jack so quickly that the rail was dropped down on plaintiff’s foot. As to the quality of the act of the fellow servant described in plaintiff’s evidence it may be likened to that of the hearer of one end of a load who suddenly and without warning drops it and thereby injures the bearer of the other end.
Knowing that laborers, such as plaintiff, were putting in new ties and were in position where such precipitate action would injure them, the fellow servant in this instance clearly was negligent in dropping the rail without warning and before plaintiff had been afforded a fair chance to shift his position.
The Federal Employers’ Liability Act of 1908, which took possession of the field of employers’ liability to employees in interstate transportation by rail, and superseded all State laws and juridical policies upon the subject (Second Employers’ Liability Cases, 223 U. S. l. c. 55) abolished the common-law rule exempting the employer from responsibility for the negligence of a fellow employee of the plaintiff and elimi
Under the Employers’ Liability Act contributory negligence is not a bar to a recovery by the plaintiff where negligence for -which the employer is responsible is also found to be a proximate cause of the injury. [Railway Co. v. Earnest, 229 U. S. 114.]
The evidence of plaintiff tends to exonerate him from any fault or negligence but the defense of contributory negligence involved issues of fact which we find Were submitted to the jury in proper instructions. The demurrer to the evidence was properly overruled. "We have sufficiently answered defendant’s criticisms of the rulings on instructions. There is no prejudicial «error in the record and the judgment is affirmed.