Weldon v. Omaha, Kansas City & Eastern Railway Co.

ELLISON, J. This is an action for damages arising from personal injury received by plaintiff, an employee of defendant, while riding, with other employees, on one of defendant’s handcars. The judgment in the trial court was for plaintiff in the sum of $4,000. > The accident happened by reason of a defect in the car which caused it to “jump the track.” Since the verdict was for plaintiff we will state as facts what the evidence in plaintiff’s behalf tends to prove them to be: Plaintiff and several other employees were engaged under the immediate direction and control of a foreman named Bosely and one Brown, who acted in Bosely’s place during the latter’s absence and who was called by the men, the “straw boss.” The defect in the car consisted of the boxing in the wheel being in bad condition, one being out, and the car being otherwise worn. It was old and somewhat shaky and was hard to run. The defective boxing would not be observed except by a special examination. The foremen had each been notified by plaintiff and others that the car was not in proper condition. They replied that all it needed was more effort on the part of those propelling it. They took no steps to have the defects repaired and permitted the men, including plaintiff, to. continue its use. [674] Plaintiff had heard the car complained of frequently by his fellow-laborers. And in his deposition taken by defendant before the trial, he stated that he had said to the foreman, in response to the latter’s complaint óf his being late getting in with it, that, “the old car is no good.” The foreman replied that the boys operating it were a “set of drones,” and “if they would put a little elbow grease on, the car would be better; that the car would be all right if they would pump it.” He frequently told the men that the ear was “all right.” Plaintiff further stated that he never gave the car any special examination and that he thought he could continue to use it by ■exercising the usual care. The evidence in behalf of the defendant consisted (aside from the extent of the injury) in the deposition of plaintiff taken at its instance and a deposition of a fellow-laborer of plaintiff’s taken by plaintiff, but not used by him at the trial. Neither the foreman nor the “straw boss” was introduced. Indeed, there was no evidence to contradict the case made by plaintiff as to the defective condition of the car. Taking the evidence in the cause, it undoubtedly made a case for the plaintiff. The law is that it is one of the master’s duties to furnish' the servant with reasonably safe machinery and appliances with which to work (in the present instance a handcar) and that the master must keep such machinery and appliances in repair. He can not escape such duty by delegating it to some other servant. Eor when he delegates a duty of his own to a servant, the latter becomes his alter ego and such servant’s knowledge and neglect is the knowledge and neglect of the master. Zellars v. Mo. Water Co., 92 Mo. App. 107; Wendler v. House Fur. Co., 165 Mo. 527. In the present instance the two foremen acting for the master are shown, not only to have known of the car being out of repair, but they directed its continued use, without any effort to remedy defects, or to have them remedied in the proper department. In such state of case, the only thing to prevent [675] a liability to plaintiff would be his knowledge of the defect, and that the danger therefrom was so obvious and glaring that a reasonably prudent and careful person would refuse to use the car. The evidence was that it took an examination to note the principal defect, and that plaintiff thought he could continue to use it. While plaintiff stated fully matters going to show that he knew the car was out of condition, it is evident from what he said that he did not consider it in such condition that it could not be used without great peril. The master and servant are not on equal footing; the latter may rely on the superior knowledge of the former in regard to the safety of appliances. He need not quit the service rather than work with defective appliances so long as the master knowingly furnishes them for his use and their defective character does not render them so glaringly dangerous as that a man of ordinary prudence would not use them. Blanton v. Dold, 109 Mo. 75; Huhn v. Railroad, 92 Mo. 447; Soeder v. Railroad, 100 Mo. 681; Settle v. Railroad, 127 Mo. 339; Wendler v. House Fur. Co., 165 Mo. 527. The objections to the instructions are without substantial merit. In point of fact, there was no defense presented by the evidence save that plaintiff knew the car was defective and that the defects were so glaringly and obviously dangerous as should have caused him to refuse to use it. This issue was clearly and pointedly placed before the jury by the instructions for plaintiff taken together. The jury could not possibly have misunderstood that phase of the case. The objection that defendant’s knowledge of the defects was assumed in instructions is not reversible error, since all the evidence shows it did know of them. There was no effort to contradict or controvert that point. In such instance it is not reversible error if an instruction assumes it. The instructions, taken as a whole, in the state of the evidence, properly covered the case. The objection made to the testimony of witness Jeffries [676] is not important or of substantial moment. It related to an admission by one of the foremen as to the defect in the ear. This point was so overwhelmingly proven, and being uncontroverted, the evidence, conceding it to be improper under ordinary circumstances was not harmful, and its being received was not reversible error. The condition of 4he car as it was found immediately after the accident, was shown by witness Eurlong. His testimony was such that it tended to establish its condition before the accident and it was therefore proper. The authorities on the general subject .of the law in relation to master and servant have been collected by the respective counsel and will be found in their briefs. We have not discussed these in detail, for the reason that in the condition of the evidence it could serve no useful purpose. The evidence as to the extent of plaintiff’s injuries bears directly on the amount he should recover. If that offered by plaintiff is to be believed, he should be allowed a substantial sum.' What that sum should be 'is a question solely for the jury; limited, of course, within reasonable bounds. If we were convinced that the amount allowed was so far beyond what the evidence justified as to show passion, hatred or prejudice, we would not hesitate to direct a remittitur. But while we would have been better satisfied with a less sum, yet we do not feel that that condition of case is presented which would justify our interference with the jury, especially since the amount has received the sanction of the learned judge who presided at the trial. We will therefore affirm the judgment. All concur.-