113 Mo. App. 498 | Mo. Ct. App. | 1905
— The plaintiff seeks to reeover damages as a result of an injury caused by the alleged negligence of the defendant while he was in its employ. The answer is a general denial and that plaintiff’s injuries, if any, were the result of his own negligence. The Chicago, Rock Island & Pacific Railway Company was also made a party defendant.
The facts are as follows: On the 11th day of November, 1902, the plaintiff was in the employ of the defendant, the Chicago, Burlington & Quincy Railway Company, as one of an extra gang of track and bridge repairers, .under its foreman, John Stanfield. On that day, and for a week or two previous, this gang had been at work at a point on said defendant’s track between, its stations of Kearney and Robertson, in Clay county, Mo. The headquarters or boarding place of this gang was at Kearney, and they used two handcars in going to and returning from their work, going out in the morning and returning in the evening. On this particular .evening the foreman stopped the men from work about 5:30 o’clock and starting back to Kearney on their handcars, the foreman and eleven men got on the larger car, which was in front, and the plaintiff and four others on thé smaller car, which was behind. The car on which the foreman rode always preceded the other. The foreman ordered one of the men, Bob Randall, called by one
The plaintiff pleaded and put in evidence rules five and sixteen of time card numbered 67 of defendant, Chicago, Burlington & Quincy Railway Company, for the purpo.se of showing the duties of the Rock Island employee^ in. charge of the colliding passenger train, and offered evidence showing negligence on its part in failing to give any. warning of its approach; but as the trial court set aside the verdict as to it, that matter is not material in this defendant’s appeal. There is evidence showing that the foreman, John Stanfield, had placed the man Randall in charge of the car on which plaintiff was riding; that he had given him orders to stop at all curves and look out for trains; that the car had usually stopped a.t this curve, under the orders of said Randall, to look out for trains; that on this occasion said Randall was on the car in charge of the same and that he failed to perform the duties required of him. The handcar as it approached the curve in question was going down grade at a rapid rate of speed.
The defendant, Chicago, Rock Island & Pacific Railway Company, was running its trains over this track as a lessee of its co-defendant. The petition is drawn and the case was submitted on the theory that if the negligence of .either defendant, its agents or servánts caused the injury, then the defendant guilty of such negligence was liable; and if both defendants were negligent and the : negligence of each concurred in causing the injury,/ then both defendants were liable. The ■court Abstained the motion, for a new trial as to defendant' Chicago., Rock Island &' Pacific Rail
At the close of plaintiff’s evidence, and also at the close of all the evidence on both sides, defendant’ offered a demurrer to plaintiff’s case. The sole point made by defendant on its appeal is that its demurrer should have been sustained on the ground that, the plaintiff assumed the risk of a collision of the handcar and the regular passenger train; that he was negligent in being upon and running the handcar down the grade at a rapid rate of speed; and that there was no negligence on the part of defendant. If there was negligence upon the part of defendant, it was liable — whether or not plaintiff assumed the risk. But- if plaintiff’s injuries were the result of his own negligence,- he was not entitled to recover, in any event, under the facts of the case. The evidence is that the collision was the result of disobedience of orders upon the part of Randall — who- was in charge of the handcar at the time — in not stopping and looking out for the approaching train. And it can make no-difference- whether he is to be treated as vice-principal or co-laborer, it was through his negligence that plaintiff was- injured. In either event, úndér the law, it was negligence for which the master is liable.
Defendant’s argument is-that Randall,’like plaintiff; was a day laborer; and,’ás snch, had n'o authority or control of plaintiff. That both- of them knew all the facts known to the other about the track, the handcar and the approaching train; and that both were- reckless and negligent in running the car so fast down grade that it could- hot be stopped’when the train came in sight.It was hécessary in order: to carry- the- laborers to their destination that they should1 be: loaded" on two- handcars’. The fotémah, with a part-of the men; got úpdm'one;; the plaintiff; ividth Randall and others, upo'n the'-'othfer.-’’It
If it be conceded that plaintiff assumed the risks incident to the occasion, it does not follow that he is thereby precluded from recovery. Hamman v. Coal Co., 156 Mo. 232, was a mining case where the deceased, an experienced miner, must have known that the condition of the roof of the mine was such as would cause it to fall at some time, and it was held: “Whether or not deceased assumed the risk of the roof falling upon and injuring him was, under the circumstances, for the determination of the jury.” The rule is so expressed in
It is true there is a class of cases which hold that, where the risk is incident to the employment of the servant, the master is not liable under such circumstances. [Minnier v. Railway, supra; Cothron v. Packing Co., 98 Mo. App. 343; Kleine v. Freunds, 91 Mo. App. 102; Harrington v. Railway, 104 Mo. App. 663.] And it is held that, where the danger Is obvious and continous, the servant assumed the risks and the master is not liable. [Fugler v. Bothe, 117 Mo. 475.] The distinction is perhaps clear enough, but the difficulty lies in the application of the law to a given state of facts. But no case can be found for authority that the servant under any circumstances assumes the risks of the master’s negligence.
We think the plaintiff made out a good case and was entitled to recover. Cause affirmed.