Prash v. Wabash Railroad

ELLISON, J. Plaintiff was an employee of defendant as one of its section men and while engaged in the work was injured by the act of a servant engaged [413] in the same service. The judgment in the trial court was for the plaintiff. It appears that the section men (except plaintiff) under the direction of a foreman were engaged in removing “angle bars” or “fish plates” from the sides of the rails composing defendant’s railroad track. These plates held the rails, or were fastened onto the rails by bolts and nuts. The plates were removed in two ways — one, by knocking off the end of the holt which had the nut on it, with a large hammer; the other, by using a chisel and hammer, so as to cut off or split the nut, and drive the bolt out. Plaintiff was engaged at work oh a gate nearby on the right of way, while Thomas, a fellow workman, was trying to knock off the end of a bolt with a hammer. He had struck it several -times without breaking it. The foreman directed plaintiff to go to -his assistance. Plaintiff started to do so. There was a handcar a few feet further along, in the direction Thomas was striking, which had some tools the men used, among others, a chisel. Plaintiff, intending to get the chisel, passed by Thomas and asked him to cease striking until he cofdd get it from the car. Thomas did so and plaintiff passed by him onto the car, got the chisel, and had faced around to return to Thomas, when the latter, for some reason, again struck the bolt and nut, knocking it off in the direction of plaintiff and striking him in the face with great force and inflicting painful and permanent injury. There is no question that if Thomas was guilty of negligence in striking the holt at the time he did, and-plaintiff was not guilty of contributory negligence, the defendant is liable for the injury; for, in this state, a railway corporation master is liable for the negligence of a fellow-servant while engaged in service like that in this case. [Callahan v. Ry. Co., 170 Mo. 473, 482; Stubbs v. Ry. Co., 85 Mo. App. 192; Orendorff v. Railway Co., 116 Mo. App. 348.] [414] It seems clear to us, from the standpoint of the evidence in plaintiff’s behalf, that Thomas was inexcusably negligent and that plaintiff was without blame. Thomas, as just stated, was striking with the hammer in a direction that would knock the bolt, if it came off, towards the car and, plaintiff asked him to cease striking while he went to the car for the chisel. But defendant suggests, citing Giatio v. Ry. Co., 132 Mo. App. 363, that Thomas was somewhat deaf and perhaps did not hear plaintiff’s. request, and that it was negligence in plaintiff to go to the car without knowing Thomas heard him. But plaintiff testified that Thomas ceased to strike when the request was made, which is, of course, evidence that he did hear him, and makes the case more like that of Miller v. Walsh, 145 Mo. App. 131, 129 S. W. Rep. 458. And it likewise shows that plaintiff could reasonably think there was no danger in going to the car. He further said that he did not then think that he would have been hurt even if Thomas had continued to strike. But he evidently thought it better and safer that Thomas should not continue, else he would not have- made the request of him. Defendant suggests that it was not' an act of culpable negligence for the reason that bolts had been theretofore knocked off in that way with safety, and that Thomas should not be held reasonably to expect the bolt would fly off with such force and that its direction would be towards the plaintiff. We reject the suggestion. It seems to us too plain for difference of opinion that any reasonable man would know that striking with a heavy hammer the nut end of a bolt, bolted into solid iron, would, if broken at all, drive the broken piece with great force in the direction of the stroke. There is but one point made against the judgment which we think presents any serious question, and that is that the second instruction for plaintiff assumes that Thomas’ act was negligence. We have, however, concluded that the objection is not well taken. The in [415] struction does not use’the word negligence, or negligent. But it submits'a series of palpably negligent acts, acts which would be negligence as a matter of law, and directs that if the jury believe these were committed by Thomas, then the finding should be for the plaintiff. In such an instruction the omission of the word “negligence” is not reversible error. It has been held that a petition which charges acts which constitute negligence, is as good pleading, though it fails to characterize them as being negligently committed. [Rawson v. Ry. Co., 129 Mo. App. 613, 616.] There are other suggestions made by defendant against the judgment which an examination shows to be untenable. We find no reason for disturbing the result and the judgment will therefore be affirmed. All concur.