133 Mo. App. 141 | Mo. Ct. App. | 1908
This- plaintiff declares on sections 2865 and 2866, Revised Statutes 1899, for damages for the death of her husband alleged to have been caused by defendant’s negligence. Deceased was the conductor of
We are not asked to say the foregoing evidence contains no proof of negligence on the part of the railroad company with respect to its track and the brakes on the two cars, defendant’s contention being the evidence fails to prove or indicate the proximate cause of the death of the deceased. It is argued the evidence touching this issue is so uncertain as to render it a mere matter of surmise or conjecture whether the deceased was thrown from the car by reason of the bad order of the track and the brakes, or jumped or fell off from some cause unconnected with the negligence charged in the petition. Unless a causal connection was shown between the negligence charged and the injury no case was made. [Harper v. Railroad, 187 Mo. 575, 86 S. W. 99.] The defective track and brakes may have had nothing to do with the casualty and the deceased may have fallen off the car through carelessness, or jumped off with suicidal intent. Those events ¿re within the range of possible occurrences. Nevertheless the evidence sufficiently inclines to prove neither happened and that deceased was hurled off the car by its rapid and oscillating motion due to the condition of the track and brakes, as to warrant the jury to find the latter was the manner of his death. His position and behavior when last seen by the persons about the station are to be taken into account, and he was then in his usual spirits and intent on his
“The rules herein set forth govern the railroads operated by the St. Louis and San Francisco Railroad Company. They take effect February 15, 1902, superseding all previous rules and instructions inconsistent therewith. Special instructions may be issued by proper authority.
“B. F. Winohell,
“Vice-President and Gen. Manager.
“The service demands the faithful, intelligent and courteous discharge of duty.
“To obtain promotion, capacity must be shown for greater responsibility.
“Employees, in accepting employment, assume its risksi,
*155 “Employees whose duties are prescribed by these rules must provide themselves with a copy.
“All persons entering into or remaining in the service of this company, are warmed that the business is hazardous, and that in accepting and retaining employment they must assume the ordinary risks attending it. Their attention is especially called to the fact that they ■are employed and retained with the express understanding and agreement that, in consideration of the compensation paid them, they will assume all risks of injury which may result to them by reason of any act, negligent or otherwise, done by any person employed by the company in the operation or maintenance of its railway, regardless of what department or line of service such person may be engaged in. (Rule 410.)
“Each employee is required to be responsible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows. Employees of every rank and grade are warned to see for themselves, before using them, that the rolling stock, machinery or tools which they are required to use, are in safe condition, or that they are put so before using. (Rule 411.)
“The company does not require or expect its employees to incur any risk, from which, by the exercise ■of their judgment and by personal care, they can protect themselves, but enjoins upon them and demands that they shall take time and use the means necessary to, in all cases, do their duty in safety. (Rule 412.)
“Trainmen must know that the cars in their train are in good order before starting, and inspect them whenever they have an opportunity to do so, particularly when entering or leaving sidings, or awaiting for other trains. All cars taken in their trains at intermediate stations must be examined with extra care. (Rule 286.)
“Conductors will see that the words “Bad Order”*156 are written with, chalk on both sides of disabled cars left at stations, and defective parts marked with a cross, and report of same made to trainmaster.”
In addition to the foregoing rules of the company introduced by itself, plaintiff introduced the following:
“When approaching stations, draw-bridges, railroad crossings, water or coal stations, and while descending heavy grades, conductors of all freight, mixed or work trains will require their brakemen to be out on top for one-half mile and until train comes to a full stop or has passed such point. (Rule 278.)
“In trains fully equipped with air, front and rear brakemen should take position on high cars, dividing as nearly as possible the distance between engine and caboose, except that where there are non-air cars, one of the brakemen must take position immediately behind the rear air brake car.” (Rule 278.)
There is no evidence of whether defendant’s regulations were closely or loosely followed, or of the interpretation put on them in practice.
(a) The rules last copied were introduced by plaintiff to shoAv deceased was in the line of his duty when he rode the cars down the grade, as they made conductors responsible for their trains, required them to protect the company’s property and directed conductors of freight or mixed trains to keep' a brakeman on top of a train as it descended heavy grades. These rules are said to have made it proper for deceased to ride the cars in order to control their speed and prevent damage. The point is made that deceased got on the car of his own volition, and a witness swore it was no part of a conductor’s duty to ride cars1 or set brakes. We find no difficulty in holding, independently of the rules invoked by plaintiff, the deceased was in the line of duty when he took charge of the cars. Some member of the crew had to manage them as they ran down the grade, and it was not amiss'for him to do so, if it en
(b) It is contended the rules required deceased to ascertain the condition of the cars before moving them, and as he must have seen the had repair of the brakes if he inspected them, he broke the rules by taking the cars out; whereas if he omitted to inspect, he violated the rules. This position raises a dilemma which is said to stand in the way of plaintiff’s recovery on either view of the matter. All the evidence hearing on the question was introduced by defendant and goes to show deceased examined the brakes “to see they were all right.” It follows he could not be held by the court to have omitted to inspect, and if an inference might be drawn from the evidence that he failed to do so, it suffices to say no hypothetical instruction was asked on the issue.
(c) But it is said the unsafe condition of the brakes was obvious, if the witnesses for the plaintiff testified truly, and must have been observed in even a casual glance, and that this being true, knowledge of their condition ought to be imputed to deceased and hence he was guilty of an infraction of the rules in attempting to handle the cars. Several circumstances are to be considered here. It is taking much for granted to say deceased must have realized the state of the brakes. This matter will be adverted to again. It is worthy of note that the rules contain no explicit command to the conductor or train crew not to take up at a way station a car in bad order, though perhaps rules 286, 411 and 412 may be interpreted to forbid this
There being no assignments of error because of rulings on the instructions, the foregoing disposes.of the appeal and the judgment will be affirmed.