Spaulding v. Missouri Lumber & Mining Co.

183 Mo. App. 648 | Mo. Ct. App. | 1914

NORTONI, J.

This is a suit for damages accrued to plaintiff through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.

Defendant is engaged in the lumber business and owns and operates in connection therewith numerous tramways and cars operated by a steam locomotive thereon. At the time of his injury plaintiff was a brakeman on one of defendant’s logging trains. It appears the locomotive was disconnected and certain cars were shunted forward down an incline and plaintiff was stationed upon one of the ears with a view to controlling it by applying the brake. In applying the brake, it was necessary to wind a chain on the brake staff and this chain was made fast by means of an eye-bolt. The eyebolt broke in two while plaintiff was utilizing the brake and precipitated him forward upon the track, to his injury. It appears one of the ears passed over plaintiff, breaking one of his legs and severely injuring the other.

Plaintiff insists that the matters of exception may not be considered here, on appeal, for the reason it does not appear the bill of exceptions was filed within the time authorized by the court thereabout. Obviously this objection is without merit, under the recent statute touching the question. The case was tried at the May, 1912, term of the circuit court and leave was granted to defendant during vacation thereafter to file the bill of exceptions in aid of the appeal then granted. It is true the bill of exceptions was not filed within the time granted by the court, but it was approved and filed before the defendant was required by the rules of this court to serve its abstract of the record on the plaintiff, and such will suffice under the amended statute, concerning the matter of filing the bill of exceptions, approved March 13, 1911. [See Laws of Missouri 1911, pp. 139, 140.]

It is further urged on the part of plaintiff that we may not consider the matters of exception because no exception was preserved to the overruling of the motion for a new trial but the contrary appears to be the fact. Such an exception is expressly recited in the bill of exceptions and enough appears on that score.

It is argued, on the part of defendant, that the court should have peremptorily directed a verdict for it because, though the eyebolt broke and occasioned plaintiff’s injury, it does not pointedly and affirmatively appear how long such eyebolt had been defective before the parts were severed while plaintiff was engaged in setting the brake. It is true the evidence concerning this matter was poorly developed at the trial and is not as satisfactory as it should be, but we believe enough appears to render the question one for the jury. Defendant’s ear inspector testified that, upon examining the broken eyebolt immediately after plaintiff’s injury, the break therein appeared to be old in part and in part new. In other words, there was an old crack in the eyebolt and so much of it was rusty while the remaining portion of the break was bright and new. It appears the car was an old one and so, too, was the equipment about the brake thereon. When those facts are considered together with the fact that the eyebolt broke at a place where a crack had existed therein, which revealed rust on the broken surfaces, we believe it was competent for the jury to infer the eyebolt was defective for a sufficient length of time to have enabled defendant to discover the defect by exercising ordinary care in performing its duty to inspect the appliances with which plaintiff was required to work. [See Guthridge v. Mo. Pac. R. Co., 94 Mo. 468, 7 S. W. 476; s. c. 105 Mo. 520, 16 S. W. 943.]

The principal instruction given at the instance of plaintiff is as follows:

“The court instructs the jury that it was the duty of the defendant to furnish and supply to its employees or those engaged in operating its trains of cars, machinery and appliances to such cars and various appliances thereto belonging, that they were reasonably safe, secure and sufficient for the transaction of its business. In absence of notice to the contrary, the employees of defendant had a right to assume that the cars and appliances furnished to them with which to work were so safe, secure and sufficient. If you' find, therefore, that defendant neglected its duty in this behalf, and that on or about the 30th day of December, 1908, J. S. Spaulding, the plaintiff was an employee of the defendant as a brakeman and was at said time engaged in the prudent and careful discharge of his duties under such employment, and that there was a defective and insufficient brake or brake appliances, to-wit: the chain connecting the brake and the rachet were defective, or broken, or that the eyebolt extending through the eye on the rachet was broken or defective on one of the ears furnished to plaintiff and upon which he was engaged to work and at the time was engaged at work; that said brake and by reason of or in consequence of such defective or insufficient brake attachments upon cars so furnished him while so engaged in the prudent and careful discharge of his duties and without any knowledge thereof on his own part said J. S. Spaulding fell or was thrown from said car and was run over and injured by a. car or train of cars then being run and operated by defendant, then the verdict should be for the plaintiff, not to exceed ten thousand dollars.”

It is urged this instruction is erroneous in several respects, and we are persuaded to that view. No one can doubt that it was defendant’s duty to exercise ordinary care for the safety of plaintiff and nothing more. Notwithstanding that this was the full measure of defendant’s obligation in the premises, the instruction above copied nowhere suggests the thought of ordinary care. On the contrary, it seems to proceed in part, at least, as though defendant was an insurer, for it informs the jury “that it was the duty of defendant to furnish and supply to its employees . . . machinery and appliances that were reasonably safe, secure and sufficient for the transaction of its business.” Moreover, the instruction says, too, that in the absence of notice to the contrary the employees had a right to assume that the cars and appliances furnished to them with which to work were so safe, secure and sufficient. There is nothing said in the instruction to the effect that defendant might perform the full measure of its duty by exercising ordinary care with respect to the end suggested; yet, the instruction proceeds to inform the jury that, if defendant neglected its duty in the behalf above stated and that as a result of such neglect plaintiff was injured, a recovery might be had. The master is required to use ordinary care only to the end of furnishing the servant appliances which are reasonably safe for the purpose intended and, therefore, the instruction above set forth inheres with error throughout. [See Dunn v. Nicholson, 117 Mo. App. 374, 93 S. W. 869; Bowen v. Chicago, etc. R. Co., 95 Mo. 268, 276, 8 S. W. 230; Hach v. St. Louis, I. M. & So. R. Co., 117 Mo. App. 11, 93 S. W. 825.] But for this alone it may be the judgment should not be reversed. In Bradley v. C. M. & St. P. Ry. Co., 138 Mo. 293, 39 S. W. 763, and also in Garard v. Mfrs. Coal & Coke Co., 207 Mo. 242, 260, 261, 105 S. W. 767, an instruction similarly defective was approved because other portions of the same instruction sufficiently advised the jury touching defendant’s duty to exercise ordinary care and operated to dispel the idea that it was an insurer. It is true in this instruction nothing appears sufficient to advise the jury as to this. But in defendant’s instruction the matter is made entirely clear, for it not only declares the correct rule on the subject, but stresses the proposition to the effect that defendant is not an insurer and that its duty was only to exercise ordinary care to the end of furnishing a reasonably safe appliance. The instructions are to be read together and when so read, we are unwilling to say that reversible error appears because of this alone. [See Pendegrass v. St. Louis & S. F. R. Co., 179 Mo. App 517, 162 S. W. 712, 717.]

However, this same instruction is erroneous, in that it authorizes a recovery on a specification of negligence appearing in the petition, but wholly devoid of support in the evidence. The evidence goes to the effect that plaintiff came to his injury through the breaking of the eyebolt to which the brake chain was attached and it was certainly proper to submit this matter to the jury. But the instruction, as will appear by the words italicized, authorized a recovery for plaintiff, too, if the jury found “the chain connecting the brake and the rachet was defective or broken.” As to this matter, nothing appears in the evidence. No one suggests that the chain connecting the brake and the rachet was defective or broken, but on the contrary the evidence is pointed and direct to the effect that the eyebolt alone broke under the strain put upon it through plaintiff’s applying the brake, as was his duty; and thus loosened the entire appliance so as to throw him forward upon the track to his injury. The first instruction for plaintiff embodies his entire theory of the case and none other, save one on the measure of damages, was given for him. This instruction authorizes a recovery in one view so radically at variance with the evidence and appears to be so inconsistent with those given on the part of defendant as to require us to condemn it as erroneous throughout. Because of it the judgment should be reversed and the cause remanded. It is so ordered.

Reynolds, P. J., and Allen, J., concur.