118 Mo. App. 152 | Mo. Ct. App. | 1906
(after stating the facts). — 1. The first question presented for decision is whether or not the court erred in leaving it to the jury to find whether or not the defendant was negligent in failing to block the guard rail in its yards w'here the deceased was run over and'killed. The rulings of the Federal courts are to the effect that, as railroad companies are charged with negligence if they block their guard rails, because employees are liable to stub their toes and fall over the blocks, and they are charged with negligence if they fail to block them, because employees are liable to put
In Lake Shore & Michigan Southern R. R. Co. v. McCormick, 74 Ind. 440, it was held the employee assumed the risk of unblocked frogs, if he knew they were unblocked and went between the cars contrary to the rules of the company to perform a service that might have been performed as well without going between the cars.
Numerous authorities might be cited holding that where there is a safe and an unsafe way open to a servant to perform a particular duty and he chooses the unsafe way and is injured, he Avill be deemed guilty of contributory negligence as a matter of law.
In Titus v. Railroad, 136 Pa. St. l. c. 626, Mitchell, J., writing the opinion of the court, said“All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of implement or nature of the mode of performance of any work, ‘reasonably safe’ means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers axe not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery, and
Some of the state legislatures have enacted statutes requiring the blocking of frogs at terminal and other railroad yards. Our Legislature passed an act (sec. 1123, R. S. 1899) in 1891, requiring all railroad companies in this State “to adopt, put in use and maintain the best known appliances or inventions to fill or block all switches, frogs and guard rails on their roads, in all' yards, divisional, and terminal stations, and where trains are made up, to prevent as far as possible the feet of employees or other persons from being caught therein.”
In Huhn v. Railroad, 92 Mo. 440 (1887), 4 S. W. 937, the plaintiff’s husband had been the defendant rail-. road company’s yardmaster at Independence, Missouri, for three or four months. In stepping in between two cars to uncouple them, he put one of his feet into an unblocked frog where it became fastened and he was run over and killed. The allegation of negligence was the failure of the company to block the frog. The trial court gave the following instruction:
“Before the plaintiff can recover in this action, it must appear that the accident, resulting in the death of Charles Huhn, was occasioned by the want of ordinary care on the part of the defendant railroad company in*160 protecting its employees, in that it failed to block the track and guard rail at the point complained of, and that, by reason thereof, the said Huhn was killed, in the manner charged in the petition; and further, it must appear that the injury was not occasioned by the carelessness and negligence of said Huhn, which directly contributed to said injury. The ordinary care demanded of the railway company is that degree of care which ordinarily prudent men, in operating railroads, would, and do generally exercise, under similar circumstances, towards the protection of their employees; and as to whether or not Charles Huhn was guilty of contributory negligence, resulting in his death, it is your duty to consider what knowledge he had of the absence of a block to the said guard rail, and, if he had knowledge thereof, whether, at the time, he was acting as a prudent man would under similar circumstances.”
The judgment was for plaintiff. On appeal the Supreme Court approved the instruction and affirmed the judgment.
In Alcorn v. Railroad, 108 Mo. 81, 18 S. W. 188, a majority of the court held whether it was or was not negligence in a railroad company not to block its guard rails, was a question for the jury.
In the recent case of Smith v. Fordyce, 190 Mo. l. c. 24-5, Gantt, J., in respect to the duties of railroad companies toward their employees, said: “The rule is well settled in this State that there is no obligation on the part of the master to furnish absolutely safe appliances, nor is a railroad bound to adopt every new invention, though an actual improvement it may be, but it is the duty of the company to use reasonable care and precaution in procuring and keeping its appliances in good condition and order, and it cannot remain wholly indifferent to the improvements of the day. [Huhn v. Railroad, 92 Mo. 440; Hamilton v. Coal Co., 108 Mo. 364, 18 S. W. 977.]”
The laws of the State of Idaho (if it has any) in
2. It is insisted that the evidence conclusively shows that the deceased was guilty of contributory negligence. If he went between the cars to uncouple them, then he
3. Under the laws of this State, deceased did not assume the risk of going in between the cars, if it was necessary for him to do so in the performance of any duty he owed the railroad company, his employer; nor was he guilty of contributory negligence as a matter of law, unless the danger was so obvious and glaring that a prudent man would not have undertaken to perform the service. [Blundell v. Mfg. Co., 189 Mo. l. c. 559, 88 S. W. 103.] The absence of blocking between the guard and track rail was not such a danger.
' 4. Since the case was appealed, John Kelly Mc-Manus has departed this life. His death does not abate the suit. It may be continued by the surviving plaintiff under the provisions of sections 858, 859, Revised Statutes 1899. [Prior v. Kiso, 96 Mo. 313, 9 S. W. 898.]
5. The act of Congress regulating interstate commerce has no application whatever to the facts in this
Discovering no reversible error in the record, the judgment is affirmed.