69 Mo. 32 | Mo. | 1878
Plaintiff was employed as a brakeman by defendant, and in attempting to uncouple some cars, was knocked down and his foot was run over by the car next behind him, inflicting an injury of so serious a nature as to render amputation of the leg above the knee necessary. He' went between the cars while they were in motion, removed the coupling pin, then went back to take out tlie link, and while walking between said cars his right foot outside, and his left foot inside of the rail, his left foot was caught and held fast between the guard-rail and that of the main track. It was thus that the accident occurred, and this action is to recover damages for the injury. The particular negligence alleged in the petition was, first, that the guard-rail was unnecessary where it was placed ; and, second, that said guard-rail was constructed of railroad
Donnelly, who testified for plaintiff, stated that the T rail is in general use in this country; that there are some U rails in use on the bridge at Kansas City ; that he knew 'of no other place where that kind of rail was in use. Knickerbocker, for plaintiff, testified that he had had about twenty years’ experience in the construction of railroads, laying tracks, &c.; that he worked on the Illinois Central railroad in 1854, and on an Iowa railroad in 1856, and subsequently on the Fort Scott and Hannibal & St. Joseph railroads; that he never had anything tó do with any except the T rail; never saw the H rail; that he knew nothing of it but from the works he studied. The evidence showed conclusively that the T rail is that generally used, and that the H rail is but little used by railroad companies.
The plaintiff’ had been about six days in defendant’s employment when the accident occurred. He had," before entering into defendant’s service, been engaged three or four years on the Illinois Central, on which road the T rail was in use. He knew there was a switch at the place where he was injured, and that- i-t was of T rail, and testified that generally there were guard-rails where there were switches, and could not say that he ever saw a switch without a corresponding guard-rail. J. M. Buckley and Mr. Emerson both testified to an experience in raili’oading of several years, on different roads, and to an acquaintance with the roads running into Kansas City, also the Illinois Central, the Pennsylvania Central, the Lafay
For the plaintiff the court instructed the jury as follows :
1. If the jury find from the evidence in this cause that the guard-rail belonging to and used by defendant in operating its road, and carrying on its business as a part of said road or appurtenances, was, from the situation or construction thereof, unsafe for employees of said railroad company employed in operating said road, and that the same, i. e., said guard-rail, might have been so made, situated or constructed as could have answered as well all the uses of said defendant in operating its said l’oad, and at the same time have been safe for its employees while engaged in the discharge of their duties, in operating said road, and that the defendant knew this, or might have known it by the exercise of reasonable care and diligence, then the jury are instructed that the defendant is liable to the plaintiff for damages for any injuries which, from the evidence, they find he has received in consequence of such unsafe guard-rail, after such want of safety of the same was known, or -by the exercise of reasonable care and diligence might have been known to the defendant; and provided, also, they believe from the evidence that plaintiff, when he received such injuries, was exercising ordinary care and diligence, and did not know of such unsafety of such guard-rail.
2. If the jury find from the evidence in this case that the guard-rail used by the defendant, when the plaintiff was injured, was, from its make or construction, unsafe, and that defendant knew thereof, or might have known thereof by the exercise of reasonable care and diligence, and that plaintiff was injured by his foot being caught in said guard-rail, the jury are instructed that the defendant is liable to plaintiff for any injuries he has received in consequence of such defect in the make and construction of
The following, asked by defendant, were refused :
3. The plaintiff' was bound to exercise such care an prudence as was commensurate with the danger of the employment in which he was engaged, and if you believe that, at the time of the happening of the -injuries complained of, plaintiff was not exercising such care and prudence as was commensurate with the danger incident to his employment, when by the. exercise of such care and prudence he could have avoided the injury, then he cannot recover in'this action.
15. If the evidence shows that the defendant used, at the place where plaintiff' was hurt, the most approved style or kind or tracks and guard-rails, and that the same were in general or universal use in this country, or this pai-t of the country, and that the same were placed or located in the usual or approved methods in use by the best constructed and conducted roads of the country, then, in such case, the plaintiff cannot recover.
There is a perplexing confusion and conflict in the authorities with regard to the duty of a railroad company to its employees, in the matter of furnishing implements and machinery for them to work with. In some of the cases dangerous and defective machinery and implements are confounded. Machinery is not necessarily defective because dangerous. The most perfect steam-engine requires skill and care in its management, and is a dangerous agent. Circular saws, planing machines and nearly all machines used in wood work are dangerous, but not, therefore, necessarily defective. This distinction must be kept in view in determining all questions which arise in suits for injuries received by employees in using implements and machinery furnished them by the employer.
The plaintiff who avers, must prove negligence. Is the_ fact that there is another kind of rail, of which a guard-rail might be constructed which would be safer for employees, and would equally answer its purpose, sufficient to render the company liable to an employee for injury rer ceived by him in consequence of the failure of the com
In T. W. & W. Ry. Co. v. Asbury, 84 Ill. 434, which was an action by his administrator to recover damages for an injury received by an employee, the court remarked : “ They (railroad companies) are not required to seek and apply every new invention, but must adopt such as are found, by experience, to combine the greatest safety with practical use.” That case goes far enough in that direction, and we think too far, in regard to the duties it exacts of the employer to the employee. The principle announced in the above extract applies to the relation of carrier and passenger, but is more exacting of the companies, with respect to employees, than we think warranted by the authorities. There is no fault to be found with what was decided in the case. It is an authority, we think, against
Applying these principles to this case, what right has plaintiff to recover from the company ? He was an experienced railroad man, thirty-five or forty years of age, had worked for years on railroads constructed as defendant’s was. He had never seen any other than a T rail used. He knew that the guard-rail was at the place where he was injured, and that it was made of T. rail. This was his own testimony, and he proved by other witnesses that the U rail would have been less dangerous, although it was but little used in this country; his own witnesses stating that the most they knew of the U rail they had learned from books, and not from observation. This, with evidence of the particular manner in which he received the injury already detailed, and the extent of his injury, was the case made by the plaintiff, and his evidence neither proved, nor had any tendency to prove negligence on the part of the defendant which made it liable in damages for the injury plaintiff received. The instruction asked by defendant at the close of plaintiff’s evidence, that it was not sufficient to warrant a verdict for plaintiff, should have been given. The first instruction for plaintiff, as already indicated, was also erroneous. Defendant’s third instruction should have been given if there had been any evidence tending to show carelessness on the part of plaintiff, but there was none.
Reversed.