Zentz v. Chappell

BROADDUS, J. — For convenience we adopt the following undisputed part of the defendants’ statement of facts in the case: “This is an action for damages brought by plaintiff against this appellant and Chas. Chappell, receiver of the Omaha, Kansas City & Eastern railroad and the Chicago, Burlington & Quincy Railroad Company for injuries alleged to have been received on August 23,1902, at Milan, Missouri, while in the employ of defendants as a car repairer and while assisting in loading car wheels onto a flat car, by means of a runway or skids. The car was about four feet high and the skids were made of timbers thirty-four feet long and ten inches wide, fastened together and extended from the railroad track to the top of the car. They were connected with the car and track and were blocked in the middle to keep them from sagging. The wheels and axle weighed about 1,500 pounds per pair and were thirty-three inches in diameter at the tread, which was four inches wide. The journal is the part of the axle extending beyond the wheel on the outside and was ten and one-half inches long and three and three-quarters inches in diameter. The shoulder between the journal and the wheel was about two inches. The center of the journal was sixteen [212] and one-half inches from the rim of the wheel. The wheels were being loaded on the repair track which was sunken so that the ground on the outside of the track was level with the top of the rails and which was a down grade to the car. The wheels were placed about one hundred feet up the track and were released one pair at a time by two men whose duty it was to start them down the track on a run towards the ear. By the time the wheels reached the skids they gained sufficient speed to carry them part of the way up the skids. At the foot of the skids plaintiff and another man were stationed, whose duty it was to follow the wheels as they ran up the skids and push them up onto the car, where two men were stationed to receive the wheels and place them. Just before the alleged injury, plaintiff and his mate had been using boards about six feet long, about six inches wide and one inch thick, with notches sawed in the ends, with which to push the wheels up onto the car, the notched end being placed on the outside of the wheel against the journal and the other end being held by the man who walked along on the ground on the outside of the skids and track. ’ ’ There was evidence tending to show that these boards or sticks were at the beginning provided by the defendant. While engaged in loading a pair of wheels in the manner above set out plaintiff and another laborer broke one of the sticks so used by them in the manner aforesaid and the wheel fell through the skids. There was something said about getting another stick but it was not got. Whereupon, Carothers, foreman of the work having reached the spot as the wheels came down, told them to let the sticks go and push the wheels up by hand, adding, as testified to by plaintiff, “drop your stick and take in after them.” On this point, plaintiff further testified that “by that time the wheels was up on me and I dropped my stick and, of course, by command, by him telling me to take in after them, why of course I took in after them up the skids.” He also stated that, [213] the wheels made good speed until they got within a certain distance of the car where the skid sagged, at which point he reached down to get hold of them, in order to keep them going, when á wheel caught him in the breast, turned him over and threw him on a pile of scrap material, bruising him and dislocating his arm at the elbow. It was shown that is was not customary or necessary for the laborer to follow the wheels when loading them, up the skid, but to walk on the outside on the ground. There was evidence tending to show that the loading of wheels by hand and by stick were both practiced by railroads, some using one way, and others using the other wav. The method was not therefore uniform. It was not shown that either was unsafe or dangerous. The plaintiff sought to recover on the ground that defendant did not have a sufficient force of employees to do the work safely, and that it did not furnish sticks for the workmen, and that the injury resulted to plaintiff by reason thereof. The answer was a general denial and contributory negligence on the part of plaintiff. The defendant’s principal contention is, that under the pleadings and evidence plaintiff was not. entitled to-recover. It does not appear that either of the methods-in use to push the wheels up the skid — by the use of sticks or by the hands — was dangerous. By either the-workman guarded himself from danger by walking on the outside of the skid, at no time following the wheels up the skid itself, as did plaintiff at the time of the latter’s injury. But plaintiff claims that he did so because he was so commanded by defendant’s foreman. If such was the case, he then did not receive his injury by reason of want of sufficient force of laborers to do the work, or from want of the stick described, but by reason of a command of defendant’s agent to perform a dangerous undertaking. To the ordinary mind plaintiff’s attempt to follow [214] the ear wheels in question — weighing 1,500 pounds — up the incline of the skids, appears to have been accompanied with much hazard. And in our view his undertaking to do so was the proximate cause of his injury. The fact that he was following the wheels in motion up the incline and stooping at the same time while bending .over them to catch hold and assist their motion, was a duty that no reasonable master would require of his servant; and if he should, then the servant would not be justified in obeying such requirement. In Stephens v. Railroad, 96 Mo. 207, the court said: £ £ There may be cases where the servant is ordered to do a particular act and the order is so unreasonable and the act so manifestly dangerous to life and limb, that the court on the evidence should declare the servant guilty of negligence in obeying the order of the master, and should direct a nonsuit. The general rule, however, is that the question is one for the jury. ’ ’ The verdict also was not responsive to the petition. As before stated, the petition bases plaintiff’s right to recover upon defendant’s failure to provide said sticks for the laborers, and failure to provide a sufficient force of laborers to properly load said wheels upon the ear, whereas, as we have seen, neither was the cause of plaintiff’s injury, he being injured by reason of his undertaking to obey an order of defendant’s foreman to get upon the skid and push up the wheels with his hands. Neither method of loading the wheels, whether with the stick or with the hands, required the laborer to get upon the skid; but both required him to walk beside it on the ground while loading the wheels. In this view of the case there was an entire failure of proof to sustain the petition. Appellants have raised other questions on their appeal ; but as the plaintiff was not entitled to recover on his case as made, they become immatesial and will not be considered. For the reasons given the cause is reversed. All concur.