Rhea v. Missouri Pacific Railway Co.

OPINION.

FARRINGTON, J.

(after stating the facts). — -The appellant (defendant) excepted to the action of the trial court in refusing plaintiff’s instruction numbered two which defines the duty of the master and servant in tiie furnishing and handling of appliances. This instruction was proper and might well have been given; hut the instructions which were given clearly instructed the jury concerning the duty of the defendant to exercise ordinary care and diligence in furnishing the appliance, and instructed that if they should find that the plaintiff was guilty of contributory negligence in the manner in which he alighted, they should find for the defendant. "While the instruction which was refused would have been entirely proper, the failure to give it in the presence of all the instructions which were given does, not constitute reversible error. Moreover, a party cannot except to the opinion of the court refusing instructions to the jury moved by the adverse party. [Bailey v. Campbell, 2 Ill. (1 Scam.) 47.]

The appellant contends that the evidence in this ease discloses a state of facts from which the defendant would not and could not have known of the defect, namely, that the set screw was gone, for a sufficient length of time to charge it with notice, and that it was erroneous to submit that question to the jury and therefore defendant’s proffered peremptory instruction should have been given.

In support of this position, appellant urges the doctrine laid down in the case of - Glasscock v. Dry Goods Co., 106 Mo. App, 657, 80 S. W. 364, and other cases cited in the brief declaring the same rule. As a first consideration, that ease turned upon the question of contributory negligence, as the final point in the opinion fully discloses. However, the court in that case does lay down a rule which is applicable here, to’-wit: Proof of negligence is not conjectural where established by facts from which a logical inference may be drawn that the defect caused the accident. In the Glasscock case, the opinion shows that the break in the rope did not come about by gradual wear and tear, but was such as would be made when a sudden force was applied to the rope, it being too short — having been tied before the accident — of which defendant had no knowledge in time to have remedied it. In the case before ns, appellant argues that because plaintiff climbed up and down five or six times within thirty minutes of the time of the injury, and stood holding to the grabiron while riding toward the station and discovered nothing wrong or loose about the grabiron. the only reasonable inference that could be drawn is that the set screw had not come out of the eye-socket or was not out for such a period of time prior to the injury that defendant would have or .could be charged with knowledge of the defect in time to have remedied it. In the Glasscock case the elevator had been running all morning and the rope subjected to exactly the same strain as was exerted upon it when it broke, whereas, in this case there is no evidence that the grab-iron had been subjected to the same strain by the«plain-ttiff or anyone else within such short time before the injury occurred. True, there is evidence that plaintiff climbed up and down five or six times while the engine was standing in the roundhouse and that he had his hand on this grabiron a moment before getting, down upon the lower step to swing off; but from the construction of this appliance, the picture of which was before the jury, it could reasonably be inferred that the force applied to it in going up and down when the engine was standing still would not tend to pull the grabiron out of its socket at the lower end and that in fact it would rather tend to hold it in its place; that'by standing in the gangway of the engine and holding to it, although the engine was moving, would likewise have no tendency to pull the grabiron from the lower socket. The evidence shows that the grab-iron came locase and fell out when plaintiff had released his hold on the grabiron which was attached to the tender and swung out away from the engine in the act of alighting. This -would plainly exert a force on the appliance that would cause it to he loose and come out at the bottom, and the screw being out at the top, the grabiron could' turn and drop- to the ground; and the jury had all the facts and circumstances before it and could reasonably infer that this was exactly what occurred, as the grabiron was found on the ground after the injury and no trace was found of the screw. The evidence showed that in backing, the engine was not subjected to any unusual bumping or jarring such as would tend to loosen a tight screw, and the jury could reasonably and logically infer that the screw was not in its place when the engine left the roundhouse. It would be no unreasonable inference from the testimony in this record that the screw was in fact out of its place when the engine left the roundhouse — a place of inspection — for such a length of time that by the exercise of ordinary care the defendant could have discovered the defect and remedied it. In the Glasscock case, the evidence is that the operator, according to his own story, was guilty of contributory negligence in not reporting the fact that the gate was striking the pulley, while in this case there is no proof whatever, that plaintiff had any knowledge that the appliance was not in proper working order. We conclude, therefore, that the facts of this case do not show that the appliance became defective within so short a time prior to the injury that the defendant could not in the exercise of ordinary care have discovered and remedied it; but that, on the other hand, the jury could under all the evidence reasonably find that the appliance became defective on account of the screw being out and that it was out for such a length of time as to impute knowledge of the defect to the defendant.

There is an ever present duty resting on the master to use ordinary care to furnish reasonably safe appliances and such duty is a continuing one- — he must keep the appliances in proper repair so far as it can be done by the exercise of ordinary care, diligence and inspection; and in the absence of knowledge of such defect being brought home to the employee, he has a right to rely upon the master faithfully performing that duty. [Parsons v. Railway Co., 94 Mo. 286, 292, 6 S. W. 464; Parker v. Railway Co., 109 Mo. 362, 392, 19 S. W. 1119.]

"What was said in the case of Gutridge v. Railway Co., 105 Mo. at pages 526 and 527, 16 S. W. 943, where the handhold on a box car gave way resulting in injury, is strikingly applicable. The court in that case in another part of the opinion used the following language: “Defendant contends also that the court erred in permitting plaintiff to prove the condition of the handhold and the car after the accident. This point is not well taken. Plaintiff in order to recover was required to prove, first, that the handhold was not safe, and, second, that defendant knew, or by the exercise of ordinary care might have known, it was not safe. It seems to us the only method open to plaintiff, to prove the defectiveness of the appliance, was to prove how it was fastened, and what condition the screws and wood were in immediately after the accident.”

In the present case, plaintiff showed the. condition of the appliance immediately after the injury — that the screw was out; that when he started to swing off, the grabiron turned and caused him, to fall to his injury; that the threads shown in the eye-socket looked good and that there was no handling of the engine between the roundhous.e and the place of injury from which it could be reasonably inferred that a screw which was in perfect condition at the roundhouse could work loose and come out in so short a distance. Indeed, appellant itself contends that the evidence conclusively shows that the screw was tight in its place when the engine was within one hundred1 feet of the place of the injury.

The picture of the engine and grabiron, which was before the jury, shows that this appliance is in no wise intricate, and that there was no need of expert testimony to explain to the jury how it could work loose or whether it would work up or down. A look at the picture reveals that merely pulling straight up or down in climbing on or off a standing engine would not tend to pull the lower end of the grabiron out of its socket, and so long as it remained in the socket at the lower end it is plainly seen that it would not and could not turn. Had the evidence shown that plaintiff or some one else had1 swung off of this moving engine five or six times within thirty minutes of the time of the injury to plaintiff, exerting an outward force such as plaintiff did when it gave way, and that it failed to give way, then the conditions might bring the defendant within the rule it seeks to invoke; but no such strain is shown to have been put upon it; at least-not that day by the plaintiff.

The jury had a right to infer that a screw, tight in its place, in threads of iron in good shape holding it to its place, will not work out and become loose in the short distance this engine traveled from the roundhouse to the place of the injury; and the jury certainly had enough evidence before it to justify a finding that this screw was not in place when the engine left the roundhouse where it had been left to be inspected and prepared for its night run. With that fact found, it became a question for their determination whether the defendant exercised such reasonable caire and inspection as to have discovered the fact that it was. missing or that it was loose. The jury has passed on that issue under the instructions given, and so much is settled for all time.

Appellant cites Warner v. Railway Co., 178 Mo. l. c. 134, 77 S. W. 67, and Goransson v. Riter-Conley Mfg. Co., 186 Mo. l. c. 307, 85 S. W. 338, in support of tlie following contention: “If tlie injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which defendant is liable produced the result, and if the evidence leaves it to conjecture, the plaintiff must fail in his action.” We see no application to this case of the rule announced in those cases, because, in the absence of- contributory negligence, which will be discussed presently, it is uncontroverted that the cause of the fall to his injury was occasioned by the giving way of the grabiron.

It is contended by appellant that because plaintiff could have remained on the engine until it traveled seventy-five or one hundred feet where it would! have stopped and he could have alighted without danger, and since, therefore, he had two courses open to him, one safer than the other, and he voluntarily chose tlie way that was less safe, he was guilty of such contributory negligence as would preclude him from recovering — that he was guilty of negligence as a matter of law.

We understand the rule to be that where the servant of his own free will chooses an unsafe manner of doing his work or using his master’s appliances when other and safer ways are at hand, he will not be permitted to recover for an injury, provided the way he has chosen is so d-langerous that an ordinarily prudent person would not have undertaken it as he did. The following rule'is given in 26 Cyc. 1250; “It is not contributory negligence on 'the part of a servant to follow a custom habitually followed by his fellow-servants, to the knowledge of the master, unless the danger is so obvious that án ordinarily prudent person would refuse to take the risk arising from such a method of work.” The fact that the servant did not take the course that was absolutely safe-, but instead chose a less safe way is some evidence from which it could be inferred that he was guilty of contributory negligence'; hut before the court can say that the inference becomes conclusive as a matter of law; it must be shown that the way in which he did it was one that a reasonably prudent person would not have attempted.

We think the rule in reference to what constitutes contributory negligence on the part of a servant who has an absolutely safe way to get off an engine and one that is not so safe is and should be the same as that declared in the sidewalk cases in this State. It is apparent that when a person come, to a defective looking-place in a sidewalk, the absolutely safe way would be to turn back and go over some other street that is safe, yet if he chooses to go over the defective place he will not be held guilty of negligence as a matter of law unless the danger was so apparent that a person in the exercise of reasonable care for his own safety, would not have taken the course. Our Supreme Court, in such a case, used this language: “The knowledge of plaintiff is only a circumstance to go to the jury in determining the question whether in attempting to use the walk on the night in question she was exercising the. care of an ordinarily prudent person under like circumstances. The court is warranted in acting only in those cases where by giving to the plaintiff the benefit of every reasonable inference that may be drawn from her testimony and the surrounding facts, no other conclusions could fairly be reached than that she disregarded all rules of common prudence and caution in the act assumed. When known or manifest danger is assumed or deliberately undertaken, the court can declare the legal effect thereof by a mandatory instruction, as was attempted in this case, but when the thing undertaken is such that men or women of ordinary intelligence might reasonably differ as to the hazard of the act, the question is one of fact for the jury to determine. Nor can it be said as further contended by defendant that plaintiff was bound to abandon the uso of the sidewalk in question and pursue another course home from the simple reason that the walk was known to her to have been out or repair, or be charged with all the consequences that did actually attend the attempted use of the same, without regard to the question of reasonable care and caution on her part.” [Graney v. City of St. Louis, 141 Mo. 180, 185, 42 S. W. 941.] The same rule has been followed in Loftis v. Kansas City, 156 Mo. App. 683, 137 S. W. 993; Heberling v. City of Warrensburg, 204 Mo. 604, 103 S. W. 36; Chilton v. City of St. Joseph, 143 Mo. 192, 42 S. W. 766; Perrette v. Kansas City, 162 Mo. 238; 62 S. W. 448; Coffey v. City of Carthage, 186 Mo. 573, 85 S. W. 532; Howard v. City of New Madrid, 148 Mo. App. 57, 127 S. W. 630.

In those cases in this State where the unsafe way was used by the servant and declared in law to be contributory negligence, the way that was used was not only unsafe, but was apparently, dangerously, unsafe. See, George v. St. Louis Mfg. Co., 159 Mo. 333, 59 S. W. 1097; Montgomery v. Railway Co., 109 Mo. App. 88, 83 S. W. 66; and there are numerous cases to the same effect.

We are cited to the case of Hirsch v. Freund Bros. Bread Co., 150 Mo. App. at page 172, 129 S. W. 1060. A sentence on this page, standing alone, would seem to hold that the servant must choose the safest method and that a failure to do so constitutes negligence, but in the course of the statement and in the opinion the learned judge expressly shows that the method employed was the one where “the particular danger which befell him was open and obvious.” Plaintiff in that case placed his hand in an obviously dangerous place, which, of course, barred a recovery.

Appellant also cites the case of Hurst v. Railroad, 163 Mo. 309, 63 S. W. 695, where the court held that the injured party was guilty of contributory negligence as a matter of law in attempting to board a caboose that was running at a rate of six miles per hour. The court in that case found under the facts as a matter of law that the attempt to board the train was dangerous. The court did not decide that it was negligence as a matter of law for the employee to board a train going at a rate of six miles an hour, but did hold that an attempt to board a train going at that rate at the place where the employee attempted to do so — ■ where the ground was obviously unsafe — was, in law, dangerous, and negligent. In that case, the danger, to-wit, the rocks and chat left on the roadbed by the master, was visible and apparent to the employee, and it took the speed of the train coupled with this obviously unsafe condition of the track, both of which were known to the employee, to constitute negligence in law. In the case before us, it was not the speed of the train that caused the injury; it was not anything that was obvious or that was known to the plaintiff that caused the injury. If he had alighted from the engine, traveling at the speed it was, and had stepped upon some place that was apparently, obviously unsafe, then he could be charged with doing that which a reasonably prudent person under the same or similar circumstances would not have done, but the evidence shows that Main street where plaintiff attempted to alight was smooth and' even. The hidden danger in the grabiron caused plaintiff’s injury. Had there been any evidence that he knew the grabiron was unsafe and he had attempted to alight when the engine was running at the speed mentioned, there would be some ground for the contention that he was guilty of negligence as a matter of law. But we do not believe a court can say in this case that a railroad man attempting to get off an engine going at a rate of six miles an hour when he thought the safety appliances were in proper condition, and the place where he attempts to alight is safe, did as a matter of law do that which an ordinarily prudent person in the exercise of ordinary care under the same or similar circumstances wonld say was dangerous to the extent that he would be charged with negligence as a matter of law. It is a question about which reasonable minds might differ as to the hazards connected with the act, and that being true, should be submitted to the jury under proper instructions. In short, the distinction between the Hurst case and this case that the dangerous place was obvious and known to the plaintiff in that case, and the defective condition of the appliance was hidden and unknown to the plaintiff in this case. The question here is not concerning the choosing between a safe way and an obviously dangerous way of getting off the engine. It was for the jury to say whether the way in which plaintiff attempted to alight was a reasonably safe way. The true rule 'is laid down in the case of Richardson v. Railroad, 223 Mo. 325, 123 S. W. 22, where the ITurst case is cited and commented on. On pages 338 and 339, the court used this language: “At -the time respondent was injured he and Lowry were attempting to couple the engine tank and stock car as they separated, and not by bringing them together. This was considered to be a safe plan whether it worked or not. The simple fact that respondent was hurt and that the coupler on the engine tank was out of order, does not conclusively show that he was guilty of contributory negligence. The result is not the true test, and the mere fact that a servant is injured because of the way of performing a duty which he selected, when if he had selected the other way injury would have been avoided, would not authorize the conclusion that he was careless.”

To declare a different rule than that which we have pointed out in this case would require a greater degree of care on the part of the servant than is exacted of the master. The employer is not required to furnish the safest place and the most modern appliances ; he must exercise ordinary care ini their selection and in keeping them in repair. Likewise, the servant is not required to use the appliances furnished him with the utmost care — the care the most prudent man might exercise; he is held only to that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances.

The rule of the defendant company warning employees about getting on or off trains in too rapid motion necessarily implies that the employees may get on or off: trains that are moving under conditions and circumstances that are apparently safe; so that as to whether the plaintiff was guilty of contributory negligence for violating the rule of the company resolves itself into a question of fact which the jury passed upon when it decided whether plaintiff’s act was such as an ordinarily prudent man,would have attempted.

We hold that the question as to whether or not there was contributory negligence was a proper one to be submitted to the jury in this case.

It is true that while plaintiff was riding from the roundhouse to the station he was not at the time in control of the engine. But it was his duty to go to the roundhouse and prepare the engine for the trip, which he had done, and it was customary for him to ride back from the roundhouse to the station, where, within a few minutes, the engine was to be turned over to him and the regular engineer. He was clearly within the line of his employment from the time he went to the roundhouse until he fell and was injured. It was his duty to be at the station a reasonable length of time before his train started and it was scheduled to leave within about ten or fifteen minutes after the time of plaintiff’s injury. In swinging off for the purpose of going to a near-by lunch room for a cup of coffee, while it cannot be said to be an act necessary to be done for the defendant company, it is one of the usual incidents of the service. Plaintiff was on the engine in the course of his employment, and the attempt to alight was not unusual, unwarranted, unlawful, or unnecessary. It was his duty and his privilege to refresh himself and keep himself in such condition physically as to perform the duties required of him; to this end, a man must eat and drink; and by doing so as the evidence in this case discloses he certainly could not be said to have voluntarily left his employment, nor to have been using the appliances furnished . him by the master for a purpose for which they were not intended.

Entertaining the views herein expressed, we hold that the case was properly submitted to the jury under instructions that correctly declared the law. Finding no error, the judgment is affirmed.

All concur.