86 Mo. App. 141 | Mo. Ct. App. | 1900
This is an action to recover damages for personal injuries.
The petition alleged, inter alia, that: Plaintiff was in the employment of defendant at the city of Trenton in this state in the capacity of common laborer in and about defendant’s round-house, switch and tracks, aiding and assisting in the movement, among other things, of engines, coupling and uncoupling the same. That in and about the work of plaintiff he was under control and direction of a boss; said boss being entrusted by defendant with authority of superintending and control of plaintiff in and about his said duties, as well as with authority to direct plaintiff in the performance thereof. That said boss ordered plaintiff to go in between two engines to couple the same together, the rear or tank ends thereof at the tima facing each other; and were being brought together on the same track in that position, the rear or tank end of one coming against the other. That said engines and tanks were
There was a trial before a jury resulting in judgment for plaintiff and defendant appealed.
At the conclusion of the evidence the defendant requested and the court refused an instruction in the nature of a demurrer to it. The propriety of the action of the court in refusing this instruction can only be determined by a reference to the evidence, the substance of which is to this effect:
At the time the plaintiff was injured he was employed by the defendant in the capacity of hostler’s helper. The duties of helper were, “to assist in knocking fires oirt of engines and to couple engines and cars together, and in moving engines and cars.” Coupling of engines together was not usual though it was occasionally done. The plaintiff had been employed
It further appears that during the course of his employment he had acquired a general knowledge of the structure and operation of the devices used by defendant in coupling its freight and passenger engines to cars. It is in effect conceded that the coupling device used on a freight engine is quite different from that of a passenger engine. The former is described as a “big flat casting with two or three pockets for the links to fit in,” and the latter as a draw head “bumper or gooseneck that runs straight back to keep out the slack in the cars.” An engine having a coupling device of the former kind and one having that of the latter could not, when being coupled, on account of the projection and extension of these devices beyond the end of the tenders of such engines, approach nearer to each other than about eighteen or twenty inches. But the device used for coupling freight engines to cars is such that it will'permit the rear end of the tenders of two of such engines, about to be coupled, to approach within about eight inches of each other; or, in other words, the space between such tenders when so coupled is only about eight inches.
The plaintiff testified that at the time of his injury he did not know how far a freight engine coupling device extended beyond the rear end of the tender of such engines, and
On the day plaintiff was injured there were three freight engines standing quite close together on a certain track in defendant’s yards. The first was headed in the direction of a certain switch. The rear end of the second was only about three feet from that of the first. The hostler told the plaintiff that they must move these engines out of the yards. As the hostler stepped upon the first he said to plaintiff that he would take two of them out and for plaintiff “to drop the pin in,” meaning for plaintiff to couple the rear of the two together, when he backed up the first. Plaintiff acting in obedience to this order promptly stepped upon the track in front of the rear of the tender of the second engine and in the nest instant the first under the control of the hostler, moved up until its tender came to a stop within eight inches of the rear end of the second, catching the plaintiff between the two and seriously injuring his shoulder and ribs. There is no suggestion that the engines so coupled were defective in any particular, or that the coupling devices of the same were different from some twenty-five others used by defendant and frequenting its yards.
The question raised by the demurrer is whether or not the facts disclosed by the record establish a cause of action. When the plaintiff, under the orders of the hostler, went between the defendant’s freight engine tenders to couple the same, did he assume the risk of danger thereby incurred? When one enters into a contract of service the law implies that he takes the risk ordinarily incident to such contract of employment, and whatever the law implies in a contract is as much a part thereof as if written therein. State v. Gas Light Co., 102 Mo. 485; State v. Gilmore, 141 Mo. 512.
The testimony of the plaintiff was that he did not know that the two tenders, when coupled in the manner shown by the evidence, would approach so' near to each other as to render it- unsafe for him to go between them to make a coupling. The evidence may be said to be such as to justify reasonable minds in drawing different inferences therefrom as to whether he did not know the danger of attempting to make the coupling, but even if his knowledge in that respect was equal to that of the defendant, which we do not think the evidence shows to be the fact, this would not of itself be sufficient to defeat his right of recovery. Smith v. Coal Co., supra. Whether or not the danger of executing the order of the hostler to make the coupling was so glaring as to threaten immediate injury to plaintiff or whether it was not reasonable to suppose that he could make the coupling safely by the exercise of ordinary care was for the jury to determine under proper instructions. Where the facts with respect to the negligence are such that reasonable minds might differ as to the importance thereof, the.
Whether the plaintiff in making the coupling assumed the risk of the danger incident thereto or was guilty of contributory negligence were, under the evidence, questions to be appropriately left to the jury under the instructions. The court very properly overruled the defendant’s demurrer to the evidence.
Turning to the instructions and we find they very fully submit every issue in the case. The 'defendant complains, however, of the plaintiff’s second instruction, but it may be seen by reference to its fifth that it is but the converse in expression of that of the plaintiff and therefore the principle asserted by each is the sazne and if it be erroneous it is common error. The defendant’s convez’se instruction told the jury that if the plaintiff was familiar with1 the coupling apparatus of the class of tenders he coupled at the time of his injury and so being when he stepped between the tenders to make the coupling, then he assuzned the risk of his position and was not entitled to recover. As has been abundantly shown by the nizmeroizs cases which we have already cited from our own reports, mere knowledge that a machine or an appliance is defective and that risk is incurred in its use will not, as a matter of law, defeat the employee’s action where the -danger is not such as to threaten imzzzediate injury, or where it is reasonable to suppose the appliance may be safely used by the exercise of care, so that these instructions were really more favorable to defendant than
The judgment of the circuit court must be affirmed.