93 Mo. 79 | Mo. | 1887
The plaintiff, a bridge carpenter, in the employ of the defendant, brought this suit to recover damages for injuries received under the following circumstances : A passenger train was wrecked at Bevier .station, at two o’clock, on the morning of the first of March, 1881. The defendant caused a wrecking and relief train to be made up at Brookfield, a station west of Bevier; this train, composed of an engine, flat cars, a •derrick car, caboose, and a passenger coach, all coupled together in the order named, started for the scene of the •wreck at four o’ clock of the same morning, with physi
The evidence for the plaintiff tends to show that a chain had been before used to make the coupling ; that one was used on this occasion when the train was made up, but that the rope was substituted therefor by the order of Mr. Cartter, the master carpenter and wreckmaster; that a rope is unfit for such use; and that the derrick car, being without a drawhead, should have been placed in the rear of the train, and the boom turned to the rear. The boom projected forward and was held in place by grab-chains. For the defendant, the evidence is, that a chain had never been used to make the coupling, and that a rope is better and safer than a chain for such use.
One witness for the plaintiff says he saw a hook in a bridge tie after the train had been wrecked, and from this, and the circumstances that the rope coupling lengthened out so that it had to be, as was taken up at a station before reaching the bridge, the conclu
The wreckmaster knew the derrick car was without a drawhead, and so did the plaintiff ; but the evidence is, that plaintiff did not know that a rope had been used to make the coupling. On the evidence, the theory of the defendant seems to be that the arch-bars of the truck to the derrick car broke and threw that car into the bridge timbers ; and that the truck was without any known or visible defect.
The second instruction for the plaintiff declares that, in entering the service .of the defendant, the plaintiff ‘c only assumed the ordinary risks and dangers of such employment, and did not assume, or contract with reference to, any risks or dangers arising or resulting from, or occasioned by, the use of a switch rope in place of a chain in coupling its derrick car in the wrecking train ; and if the jury believe, from the evidence, that the use of such switch rope rendered such coupling more unsafe or dangerous than if a chain had been used for such coupling, and that the plaintiff did not know of the use by defendant of such switch rope, at the time he took passage on said train, and that the injuries to plaintiff were caused or brought about by such unsafe coupling, they will find for plaintiff; provided, they further find that such switch rope was substituted by order of A. J. Cartter, and that he had charge of the bridge and wrecking department of the defendant, with power to hire and discharge the men in his department, and to direct with what material such coupling should be made.”
The judgment is reversed, and the cause remanded for new trial.