Cole v. St. Louis Transit Co.

VALLIANT, J. This is an appeal from a judgment in favor of the plaintiff for $5,000, as damages, for injuries sustained by him in a collision of cars on defendant’s street railroad. At the date of the accident, March 7, 1901, the defendant was operating certain street railroads in St. Louis, one line of which was in Olive street running east and west, and another in Sixth street running north and south.' At that date the Olive street line was operated by cable, the Sixth street line by electricity. Plaintiff was an employee of defendant in the capacity of grip-man on the Olive street line. The petition alleges that as the train on which' the plaintiff was operating as gripman, going west on Olive street, approached the crossing of defendant’s tracks in Sixth street, there was a car of defendant in Sixth street headed south approaching the same crossing; that by the rules of the defendant company the Olive street train had the right-of-way and it was the duty of the motorman on the Sixth street car to give way and let the Olive street cars pass, but, disregarding that duty, he ran his car aiming to pass the crossing in the face of the approaching Olive street train, with the result that the cars came into collision. For specifications of acts of negligence on the part of the defendant as master, as distinguished from the acts of the motorman on the Sixth street car, the petition alleges that the track was — 87 — muddy and slick, no sand had been put on it, tbe sand box on tbe grip car was ont of order and plaintiff conld not use it to throw sand on tbe rail; there was no flagman at tbe crossing; tbe brake on tbe grip car which was designed to operate on both tbe grip car and tbe trailer, was out of order, so that it could not be applied to tbe wheels of tbe trailer, of all which tbe defendant bad notice; that tbe consequence of tbe defective brake was that tbe plaintiff was unable to stop bis train on tbe slippery track in time to avoid tbe collision. Tbe answer was a general denial and a plea that if tbe alleged omissions were true they were known to tbe plaintiff before tbe accident and by using them with the knowledge be assumed tbe risk; also a plea that be was guilty of contributory negligence in not looking out for a car on Sixth street, and in not using tbe appliances for sanding tbe rail and stopping tbe car in time to have stopped tbe same and avoided tbe accident. Reply, general denial. Tbe evidence for tbe plaintiff tended to show as ■follows: Tbe brake was in bad order and not effective for tbe ■purpose for which it was designed. Tbe plaintiff’s first trip on that day was in tbe afternoon, starting from tbe ■car shed at 3200 Olive street going west to King’s Highway. On making bis first stop going west be discovered that tbe brake was out of order. Returning, be went east from King’s Highway in Olive to Fourth street, which was tbe eastern terminus of tbe road. At Fourth .street tbe cars bad to be uncoupled to allow tbe grip car to be switched back to take its place in front of tbe trailer to go west again. At that point there was a man stationed whose main work was to couple tbe cars, but gripman were required to report to this man any defect in tbe cars, and be was authorized to order tbe car turned in and another car brought out in its place. This man’s name was Gold. When tbe plaintiff reached Fourth street on bis first trip be reported to Mr. Gold that — 88 — this brake was in bad order, and requested that the car be turned in. Gold examined the brake, tightened it, and told the plaintiff be thought he could get along with it, that other men had done so and he could; he also said that the sand car would be along and sand the track. Plaintiff then started back on another trip west; when he reached the power house on Olive street, he there .saw Mr. Richardson, who was the foreman of the car shed and who had authority to order the car turned in. He told Mr. Richardson that the brake would not work and that it was a hal'd matter to get along with it; Mr. Richardson told him that others had got along with it and he could; that he should use it until the rush was over. Plaintiff then went on to the end of his trip west toKing’s Highway and then returned as before-to Fourth street. On his second trip west from Fourth street as he approached Sixth street, within about thirty-five feet of the crossing he slowed down, and then he saw a car on Sixth street coming south and about sixty feet from the crossing; he noticed that the motorman of that car had also slowed down, and, thinking that the motorman had done so to let the Olive street train pass, as it had the right-of-way, the plaintiff “eased up” on his brakes and made for the crossing, but just as he did so the motorman with his face turned towards the we’st turned on his full power and rushed his car at high speed in front of plaintiff’s train; plaintiff immediately applied Ms brake as best he could, but the brake would not work,, and the train passed along the slippery track and struck the Sixth street car at its front gate. At the rate the plaintiff’s train was going he could have easily stopped it before reaching the other car if the brake had been in normal condition. The evidence also showed that the track was muddy and slippery, and the plaintiff, in the emergency, endeavored to apply sand to the rail but the sand box would not work. The plaintiff in the collision received severe injuries. He was 46 years old and had been in the employ — 89 — of defendant about nine months, was earning $60 to $63 a month, had never worked for wages before, had been in business on his own account before he came to St. Louis. Over defendant’s objection he was permitted to testify in relation to his earning capacity in former years. He said that he had been chiefly engaged in buying and selling live stock from Wisconsin and Dakota to Chicago; sometimes he lost money, and sometimes he made $2,000, $3,000, or $4,000 a year. At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant asked an instruction to the effect that the plaintiff was not entitled to recover, which the court refused and defendant excepted. The testimony on the part of the defendant tended to show that the brake in the car was in good condition; the gripman who usually ran it and had run it on that day up to the time the plaintiff took hold of it, testified that it worked well, and was in good order. Mr. Richardson denied that the plaintiff reported the car to him as out of order, and there was other evidence tending to corroborate his testimony. ■ The main instruction given for the plaintiff was tQ the effect that if the jury should! find from the evidence that the brake was in bad order and would not do the work for which it was designed, “and if you further believe and find from the evidence that defendant’s starter, Gold, or its foreman, Richardson, knew of said condition of said brake; if you believe and find from the evidence it was in said condition at said time, a sufficient length of time before said collision to have repaired the same, or have had said car turned in, and that they failed to do so; and if you further believe and find from the evidence that said condition of said brake was the cause of the collision; or if you believe and find from the evidence that the employees of defendant in charge of and operating said Sixth street car did not exercise ordinary care in operating the same at the time — 90 — of the collision, and snch failure to exercise ordinary care, and the said defective condition of said brake, if yon believe from the evidence it was at said time in a defective condition, combined and jointly, were the canse of the collision; and if yon further find from the evidence that at said time the plaintiff was exercising reasonable and ordinary care as a gripman on the said car on which he was working, then yon will find a verdict for the plaintiff.” There were a number of other instructions given of which there is no complaint. The court refused two instruction's asked by defendant, and the refusal of them is assigned for error. They will be referred to hereinafter. I. The first point presented by appellant is that the petition does not state a cause of action, since it fails to state that the defects in the appliances complained of were not known to the plaintiff. In a suit of this kind by á servant against his master it is not necessary for the servant to allege in his petition that the defective condition of the appliances 'which it is alleged caused the injury were not known to the plaintiff. [Crane v. Railroad, 87 Mo. 588; Young v. Iron Co., 103 Mo. 324.] It is not essential to the plaintiff’s right of recovery that he should have been ignorant of the defect; it is only in case the danger from the defective appliance is so obvious as to render the servant’s act in using it contributory negligence that it becomes a bar to his recovery. [Pauck v. St. Louis Beef & Prov. Co., 159 Mo. 467.] II. The admission of the evidence as to the kind of business the plaintiff had been engaged in before his employment by defendant and the amount of his earning in such business is assigned for error. ’Where the testimony, as in this case, tends to show that a man is permanently injured and his capacity for earning a living is impaired, it is proper for the jury to — 91 — know something of his ability in that respect as shown by his previous work. The testimony complained of was rather vague in its character and weak in its effect. The verdict as to the amount of the damages assessed by the jury is well sustained by the evidence and appellant in its brief does not contend that it is excessive. We find no reversible error in the admission of that evidence. III. Appellant contends that the demurrer to the evidence should have been sustained. The argument on this point rests mainly on the fact that the plaintiff knew that the brake was in a bad condition. We have already said that mere knowledge that the brake was defective will not preclude the plaintiff’s recovery. If the condition of the brake was such that the plaintiff might reasonably suppose that he could safely use it by taking due care, he was not- to blame for continuing its use. The servant is also, when in doubt, justified in paying some deference to what his master or his master’s representative tells him about it. In this case the testimony shows that Mr. Gold and Mr. Richardson both assured him that he could use it, that it had been used with safety by the other gripmen. Mr. Gold also told him that the sand car would come along and sand the track. With these assurances his act in using the appliance was not so obviously dangerous as to authorize the court to pronounce his conduct negligence as a matter of law. Besides these assurances, the testimony of the defendant tended to prove that the brake was not in a bad condition at all. Whether it was in a good or a bad' condition was, to some extent at least, a matter of opinion. The jury had a right to credit the other gripman, who testified that it was in a good condition, with honesty in the expression of his opinion, yet believe that he was mistaken in that opinion, and yet conclude that his testimony was sufficient to show that — 92 — reasonable and honest men might differ about the matter. Knowledge that the brake was defective certainly did impose on the plaintiff the duty of observing increased care in its use, .but the evidence shows that he did everything possible that could be expected of a careful man in his situation. It is said that the plaintiff saw that the motorman was looking to the west, paying no attention to the plaintiff’s train coming from the east, and the plaintiff was, therefore, negligent in moving forward. The testimony was that the motorman turned his face to the west and in the same instant applied the power, and the plaintiff immediately brought all the appliances within his reach into action to stop the train, but could not do so. There was no error in overruling the demurrer to the evidence. IY. There are several objections urged to the first instruction. a. It is first complained that the instruction assumes that Gold was a vice principal and charges the defendant with notice of what Gold knew in regard to the defective condition of the brake. Perhaps the instruction does assume a fact that depends only on evidence introduced by the plaintiff and should have been left to the jury to find. But that was the testimony of Mr. Gold himself and the defendant made no effort to contradict it. He said that whilst his main work was to uncouple and couple the cars at the Fourth street terminus, yet he also had authority to order a ear turned in when it was out of order and another car brought out in its place and that a telephone was furnished him for that purpose. Strictly speaking it ought to have been left to the jury to say whether he had that authority and if there was anything in the case to east any doubt on that fact we would be justified in reversing the judgment for that error. But Mr. Richardson, the foreman — 93 — of the ear shed, and Mr. Davidson, the assistant general superintendent, were on the stand as witnesses, and neither of them denied the statement of Mr.. Gold in that particular. The error does not affect the merits of the case. b. The.next criticism of the instruction is that it defines the duty of the plaintiff to have been to exercise “reasonable and ordinary care as a gripman on said car. ’ ’ The argument is that since the defendant was a common carrier of passengers and its duty was to exercise a very high degree of care for the protection of its passengers, the plaintiff'being employed by defendant in the work of carrying passengers] he impliedly contracted to exercise in the doing of that work that degree of care that the law imposed on the carrier, and that, therefore, it was error to say that he was, in this case, required to exercise only ordinary care. The proposition is not without reason, although there are no authorities cited to sustain it. If the servant’s failure to exercise the high degree of care which his master owed to a passenger should result in injury to a passenger and the master should be required to pay damages therefor, then, in a suit by the master against the servant for failure to do his duty, the point now made by appellant would seem unanswerable. But where it is the servant only who is injured and the suit is between him and his master, the rule has usually been to measure the duty of each to the other by the standard of ordinary care. The ingenious argument of the learned counsel leads to this thought, that is, if we should say that the duty of a servant of a carrier of passengers, in the dangerous position of gripman or locomotive engineer, was to exercise for his own safety the highest degree of care practicable among experienced and careful men in that business, a case might arise in which there would be a conflict between the duty the servant owed himself in the face of danger and that he owed the passengers under his care. There are instances within the com94 mo-n experience of mankind in which brave men in snch positions have put the safety of those in their care above-their oto safety and we are not prepared now to lay-down a rnle of law that would condemn them. But that is an abstract proposition in this case,, because, whatever may have been the degree of care-this plaintiff ought to have exercised, the evidence-shows that he did not fail to reach the highest degree. c. The next criticism is that the instruction ignores the plea that the plaintiff “assumed the risk.’’ The-servant assumes the risk of the danger incident to the employment, but he never assumes the risk of the master’s negligence. If his master furnishes him unsafe-implements and he uses them, knowing them to be unsafe, a question of contributory negligence arises, but. not of assumption of the risk. [Pauck v. Beef Co., supra; Curtis v. McNair, 173 Mo. 270; Parks v. Railroad, 178 Mo. 108.] d. The instruction authorizes a verdict for the plaintiff, if the jury find that the cause of the injury was the result of the combined negligence of a fellow-servant and that of the master. There is no error in that feature of the instruction. The suit is bottomed on the negligence of the master and the instruction in the particular now under discussion is only in effect saying that if the master was-negligent, it is no excuse that the negligence of a fellow-servant of the plaintiff contributed with that of the-master to cause the injury. [Deweese v. Mining Co., 54 Mo. App. 476, s. c., 128 Mo. 423; Young v. Iron Co., 103 Mo. 324; Browning v. Railroad, 124 Mo. 55.] There is no error in the first instruction. V. One of the instructions asked by defendant and refused was based on a theory which we have already discussed; it was in effect that, whereas the law imposes on the carrier a very high degree of care for the protection of the passenger, the contract of employment — 95 — between the carrier and the servant engaged in the work implies that he will exercise the same high degree of care for his own safety. From what we have already said on that subject it follows that the refusal of that instruction was not- error. The other refused instruction was to the effect that though the car and track were defective, yet, if the plaintiff knew it he can not recover “unless you find that the defendant promised to repair the same and the plaintiff continued to use the same in reliance upon such promise, and before the expiration of a reasonable time after such promise was made (if there was such promise) the plaintiff was injured on account of such defects.” There was no such issue as that presented by the evidence in the case and it would have been error to have given that instruction. There was no.promise to repair and hence no reliance on such promise. “What the plaintiff did rely■ on was the assurance of Mr. Gold and Mr. Eichardson that the car could be used with safety as demonstrated by the fact that others had used it. The rest of that instruction which is to the effect that, the plaintiff knowing the defects, it was his duty to be mindful of them and exercise the care that the condition required, was amply covered in other instructions given. We find no error in the record. The judgment is affirmed. All concur.