Dean v. Kansas City, Clinton & Springfield Ry. Co.

ÉLLISON, J. Plaintiff: was an employee of defendant as a section laborer under the immediate charge and orders of a foreman. He was injured in such service, and, claiming that defendant’s negligence was the cause of the injury, he brought this action for damages and obtained judgment in the trial court. Plaintiff, with the foreman and four other section men, six in all, came to the scene of the injury in a “motor car,” now in some use on railway tracks by section men, instead of the ordinary “hand car,” intending to load “ballast” onto two cars standing on a side or spur track. The motor car was stopped several feet before getting to the standing cars, and it was down grade from the latter to the motor. There was a pile of ballast 25 or 30 feet from the track and it was being loaded! onto the flat car, which had side boards, so as to carry" larger loads. The loading was prepared for by attaching two heavy gang planks, 34 feet long, one near each end, and rolling the ballast up these planks in wheelbarrows. In order to keep the planks in place they, or at least the one which figures in this case, was spiked to the top of the side board of the car, while the other end rested on the ground near the pile of ballast. The car being loaded had a defective brake and the other one had no brake. Plaintiff had spoken to the car repairer about the defective brake several days before and the latter had promised to repair it, and plaintiff supposed he had done so. The foreman announced to the men that the cars were ready for loading and plaintiff, had wheeled up some loads and dumped them in the car: But at the time of the mishap the foreman himself was wheeling up, while the others were loading into the barrows. While on the plank, about midway up, the foreman felt it move under him, and he called out in a rapid utterance to the men: “The car’s going; catch it; are the■ brakes off ? Catch it.” The men ran to the car, plaintiff' picked up a block as he ran and tried to stop it by “chocking the wheels,” but could not. Fearing it would run [638] into the standing motor car, several feet down the track, he ran to it and started it by pushing so that it would get out of the way, and then ran back to the moving ballast car. He noticed one of the hands, a boy 16 years old, up in the car trying to set the brake, but he was not strong enough, because the brake shoe clasped the flange instead of the flat of the wheel. Plaintiff saw the difficulty as he came running back to the car, which was yet moving very slowly, and thought best to get on the car and help to tighten the brake. To do so, he grabbed tho top of the side board of the car with both hands, two or three feet forward of the point to which the gang plank was spiked. Hje placed his foot on the oil box of the wheel and endeavored to pull himself, up. In the mean time the car continued to move. The spiked end of the plank on the car moved with the car and the other end being on the ground, the tendency was to bring the plank around towards, and, in a measure, parallel with the side of the car. The end on the car began to loosen the spikes and to “twist off,” till presently it broke loose and fell or slid down the side of the car onto plaintiff, dragging him from his place where he was in the act of getting on the car, and falling upon him and inflicting severe injury. All of this was done in a very short space of time. As was stated in the argument, “it was done in less time than it tabes to tell it.” Plaintiff heard the imperative and excited order of the foreman, and he sprang to the rescue. The foreman himself testified that “no man stopped to parry or inquire.” It seems to us not becoming in defendant now to criticise his mode of executing the order. He deserves praise rather than blame. It was all under the foreman’s immediate direction and observation. In the foreman’s alarm he had called attention to the brakes. Disobedience to the foreman, or slowness in attempting to obey, might have meant great disaster by the cars getting awrny. [639] The foreman represented the company and he gave an .order which involved a hazard considering what was required. It commanded plaintiff to stop or catch the-car and asked if the brakes were off. The terms of the order were no less than saying if the brakes were off, to set them, if it could not be stopped otherwise. But defendant says he chose the most hazardous way. That he should have gone to the other side of the car so the gang plank could not have fallen upon him. Is plaintiff to be held to perfection of judgment in such an emergency? Would defendant have one of its servants, facing such situation, move slowly, or maybe stop and ponder? The. young man trying to fasten the brake had climbed up on the same side plaintiff attempted and the foreman did not object. We do not see any valid or reasonable ground upon which we could, place a reversal. Defendant was liberally treated by the trial court. Indeed, its instruction No. 7, withdrawing certain charges of negligence as unsupported by the evidence, should not have been given. The evidence tended to show that plaintiff was ordred into a place known to defendant to be unsafe and dangerous, and yet, in the circumstances, it was not so obviously dangerous as to leave the servant without redress if he obeyed. [Stephens v. Ry. Co., 96 Mo. 207; s. c., 86 Mo. 221; Schroeder v. Ry. Co., 108 Mo. 322; Clippard v. Transit Co., 202 Mo. 432; Burkard v. Rope Co., 217 Mo. 466.] It will not do to say that because the court instructed that certain charges of negligence in the position of the cars and the condition of the brake, were not to be attributed to defendant’s negligence, that defendant is thereby in any way excused from the consequences of the order. If a place is dangerous and unsafe, it is wrong for the master to knowingly send the servant into it, whether it became unsafe through the act of the master or from some other cause. [640] We do not consider the damages to be excessive, and , finding no error in the record, we affirm the judgment. All concur.