118 Mo. 268 | Mo. | 1893
The plaintiff, a young man under the age of twenty-one years, prosecutes this suit by his next friend to recover damages for personal injuries. There is no dispute as to the following facts:
The plaintiff was one of a gang of -six or eight
The plaintiff founds his action on these averments, namely: That he was on the right of way by order of his foreman; that the defendant negligently suffered its road bed and track thereon to become unsafe and dangerous at the point of the accident, in these respects: the ties were decayed and rotten, the rails were badly worn and not properly fastened to the ties, and the outer rail of the curve did not have sufficient
The evidence of the plaintiff is very strong to the effect that Reed ordered his men to go from the McAllister crossing to Speed and pick up the tools as they went along and take the work train at that place for California, and that they walked along the track as they did because of the order of Reed, their foreman. On the other hand Reed says he told his men they would get their supper and wait at the crossing for the train, and this was the order he had from the division superintendent. He says when they got to the crossing, he or some of the men suggested that they walk down to Speed and get on the train at that place, and accordingly they all started for Speed, walking on the trhck. Says he was not on duty at that time, it being after six o’clock.
. There is much evidence tending to show that the ties were from two to two and a half feet apart, that some of them were of the usual size and others smaller, that many of them were rotten so they would not hold a spike, and that the lines of the track varied from right to left and the rails were not level on top. Other evidence shows that the plaintiff and his gang replaced the inner rail of the curve with steel rails a few days, less than a week, before the accident. The steel rails were rails which had been used on the main track. The outside rail of the curve was steel and had been down a much longer time. The defendant’s evidence is that a gang of men went over this track three or four weeks before the accident and put in some new ties, that while most of the ties had been in the ground
According to most of the witnesses the train was going from twenty-three to thirty miles per hour, and the evidence of those in charge of it is that the same train had been run that fast over this part of the road before the accident and has been run as fast since then. One witness who was a passenger says the train was running as fast as thirty-five miles per hour, and another one says it was running twice as fast as he ever saw it run before, and that one of the freight cars was thrown thirty or forty feet from the track.
It appears the car which caused the wreck left the track just as the train passed through the curve. Several witnesses say it had one wheel broken off, and the break at the axle had the appearance of being a fresh one. They gave it as their opinion that this break caused the wreck. They say such accidents occur without any apparent cause.
The chief complaints made on this appeal by the ' defendant arise out of the rulings of the trial court, in overruling the defendant’s objection to the introduction of any evidence because the petition failed to state facts sufficient to constitute a cause of action.; and in overruling the defendant’s demurrer to the plaintiff’s evidence.
1. The first of these objections made here is, that the plaintiff and those in charge of the passenger and freight trains were fellow servants within the rule which exempts the master from liability where one servant is injured by the negligence of a coservant. This objection ' has nothing to do with the plaintiff’s •cause of action so far as it is founded on a defective roadbed
This case is unlike the Parker case, 109 Mo. 362. There the train was engaged in hauling ballast which Parker and others placed upon the track. The evidence was not clear as to what, if any, relation existed between the track repairers and trainmen. Here the facts which take the plaintiff out of the rule as a matter of law, are conceded.
2. It does not follow that the plaintiff was a trespasser because he was on the right of way after the usual working hours. He was there with the foreman and the other members of his gang, all going to the station to take the work train for the next working place, and there is an abundance of evidence tending to show that the plaintiff and others went down to the track to the station pursuant to the orders of their foreman, for the-purpose of gathering up the tools on the way. Under these circumstances this court cannot say plaintiff was a trespasser. No case cited has any tendency to justify such a ruling.
But it is said the defendant owed the plaintiff no duty, either as to the condition of its track or the speed of the tlain, even if he is to be deemed and treated as
3. There was certainly an abundance of evidence tending to show that 'the track was in an unsafe condition, by reason of rotten ties and rails insecurely fastened, and that in view of this condition of the track, the train was running at a negligent rate of speed. From the circumstances put in evidence, the jury could well draw the conclusion that the cars left the track for one or the other of these reasons, or both combined. It is true there is evidence tending to show that the wreck was caused by a broken axle, and there is also evidence tending to show that the axle was broken by reason of the speed of the train over a rough road. These points are, however, covered by instructions given at the request of the defendant.
But it is said the plaintiff ought not ,to recover because he had within a week assisted in taking up' the old rails and in putting down others at this place, and therefore knew of the condition of the track, and hence
4. William Atkinson, a witness for plaintiff, stated that he passed over the road from the first to the seventh of August, 1881. The accident in question occurred on the first of September of that year. The witness then stated, over the objections of the defendant, that the ties were in a bad condition, which condition he described. On cross-examination he said he did not know what condition the ties were in on the first of September.
The defendant objected to the evidence of this witness for two reasons; first, because it then appeared in evidence that the track had been repaired only a few days before the accident; and, second, because the condition of the track from the first to the seventh of August was immaterial.
At the time this witness was called, the plaintiff’s evidence showed that the track had been repaired by placing a steel rail on the inside of the curve, but there was no evidence to show that any change had been made in the ties. Indeed, two of the witnesses being section men belonging to plaintiff’s gang, had testified that they did nothing with the ties; that they laid the
With respect to the other objectionit isto be observed that the inquiry was, what was the condition of the ties at the time of the accident? But it was not necessary that the witnesses should be able to speak of the condition of the ties on that very day. Evidence of the condition of the ties within a reasonable time before or after the accident was competent. The limitation to such evidence is that it must be such, in character and point of time, as to justify the inference that the ties were in a bad condition at the time of the accident. Stoher v. Railroad, 91 Mo. 509. Indeed it was said in Stewart v. Everts, 44 Am. & Eng. R. R. Cases, 313, the case, and only case, to which we are referred by appellant: “The mere fact that the road was repaired at that place six months after the accident, would not in itself be competent evidence tending to show that it was out of repair when the accident happened; but if, in making such repairs, it was found that the ties were in such a state of decay as to fairly lead to the conclusion that they were in a decayed state when the accident happened, or that the condition of the roadbed was such as would fairly tend to prove that it was not in a safe condition when the accident happened, such evidence would be clearly admissible. Its weight would be a question for the ■jury.” It was, of course, open to the defendant to show that the road had been repaired by putting in new or sound ties before the accident happened.
The objections, and only objections, made to the instructions have been answered by what has been
said. The judgment is affirmed.