Plaintiff recovered judgment for damages for personal injuries alleged to have been occasioned by the negligence of the defendant, from which judgment defendant has appealed.
The petition substantially sets forth as the cause of action, the following, viz. : That plaintiff was an employe of defendant as a yardman in Kansas City, and that, on the eighteenth of March, 1883, defendant was engaged in moving from its yard and depot in the western part of the city, a train containing an unusually large number of cars, and for that purpose was using an engine at the head of said train in pulling it, which engine was under the control of Jesse Langer as engineer, and also another engine at the rear end of said train pushing it; that, on account of the length of the train, and the nature of the track and surrounding obstacles, those employed on the hindmost engine could not see those employed on the front engine or front part of the train and viceversa; that said Langer, engineer in charge of said front engine, was incompetent, reckless, and negligent, and unfit for the position, of which defendant had knowledge; that defendant negligently and carelessly had and used as the rear car of said train, one, the bumpers or deadwoods of which were so constructed as to greatly enhance the danger of injury to any person coupling or attempting to couple the same to any other car or engine. It is further averred that it was the duty *666of plaintiff to attend said engine in the rear of said train, and do whatever coupling was then required; that, as said train was proceeding eastward, from said western depot and yards, the said engine became uncoupled, and that it became plaintiff’s duty to couple the same to said car, the bumpers of which were constructed as aforesaid ; that, while he was proceeding to couple the same in the usual and customary manner, with due care on his part, the said Danger carelessly and negligently, and. without any signal or notice being given,'reversed said engine at the front of said train and caused said cars to be thrown ba.ck suddenly and with great violence to the rear, so that plaintiff having no notice thereof could not withdraw from between said bumpers and rear engine, where he had his right arm for the purpose of making the coupling, and that, by means thereof and the dangerous construction of said car and bumpers, plaintiff’s arm was caught between said bumpers and engine, inflicting an injury resulting in -the loss of his right hand and a portion of his arm. The answer, after making certain admissions as to defendant being a corporation, etc., denies the averments of the petition on which plaintiff bases his cause of action, and avers substantially that plaintiff’s injury was caused by his own negligence.
During the trial plaintiff offered W. E. Bridges as a witness, who testified that he was the agent of defendant and in charge of the freight offices both at Twelfth street and Grand avenue ; that he kept a book containing a letter-press copy of reports of accidents to' persons and property ; that these reports were then sent to the division superintendent at Slater; that the custom was to make reports to him which he copied' into a book, which he . produced, and was asked to reacj in evidence from said book the letter-impression copies of certain reports of an accident. This was objected to- on the *667ground that said reports were incompetent and irrelevant, and on the ground that they did not show how the • accident occurred, or have any tendency to show any incompetency in running or managing an engine on the-part of Langer, and as not being any knowledge to the company. No objection was made to the evidence on the ground that the original report instead of a copy should be produced. The objection was properly overruled, inasmuch as the evidence offered tended to show that a collision had occurred between switch engine 47, and train number 94; that Langer was engineer of said switch engine, and trusted it to be run by a non-employe- and incompetent engineer, who could not manage it, and hence the collision.
It is next insisted that the court erred in refusing to-give an instruction asked by defendant in the nature of a demurrer to the evidence. In passing upon a demurrer to evidence the court is required to make every inference of fact in favor of the party offering the evidence which can reasonably be made. Buesching v. Gas Light Co., 73 Mo. 219. No controversy in this case-' is made by the evidence as to the following facts, viz.: That the train in question was being moved by am engine at Its front and in charge of Langer as engineer, and by an engine at the rear end of the train in charge of one Green as engineer; that the hindmost car in the train was a United States rolling-stock car; that while-the train was in transit plaintiff discovered that said, car was uncoupled, and undertook to couple it, and while doing so received the injury for which he sues. '
The disputed questions are : Was this United States' rolling-stock car extra hazardous to plaintiff whose duty it was to make couplings ? Was the engineer Langer in charge of the front engine incompetent and reckless, and if so did defendant have knowledge of it % Did said Langer, negligently and without warning, reverse his-engine, thereby causing, said train to be suddenly and> *668violently thrown back while plaintiff was engaged in making the coupling, and causing him to be injured? Was the injury the result of plaintiff’s own negligence ? As to all these disputed questions it may be said generally that the evidence is conflicting, as the following summary of it will show :
Witness- Mallory testified that the United States rolling-stock cars are considered among all railroad men as man-killers, owing to the danger when a man goes to make a coupling; that the drawheads are constructed in ordinary western cars so that it gives a man from about twelve to fourteen inches room for his hand, but when he goes in between these cars he has no room at all. He has got to get underneath or on top. ' The western cars do not- have these side bumpers. All the western roads have a different kind of .car as to coupling. Any car with side bumpers is dangerous. These cars with bumpers are used on some eastern roads. The Hannibal & St. Joseph road had a good many of this kind of cars in use.
■ There is evidence on the other side tending to show that all the roads have carried more or less of - these United States rolling-stock cars and received them from ■other roads; that the Hannibal & St. Joe road had about three hundred of them leased. Plaintiff testified that the Chicago and Alton road had none of the United States rolling-stock cars and that said cars were more dangerous than others because of the construction of the •bumpers and deadwoods. As to his knowledge of the car in question he testified as follows: “This js the first United States rolling-stock car I had seen for a good while. If I had seen any I don’t recollect it, but not to the best of my opinion while I was switching there, until I got caught with this car.”
The evidence as to the incompetency of Hanger tended to show that he had been laid off by defendant for sixty days for having left his engine in charge of ■one Ketchum, who undertook to run it in his absence, *669and in doing so collided with another train; that he sometimes handled cars roughly. Witness Prudens testified “ that he had been working with Langer a year and a half; that he sometimes handled cars px*etty roughly. I know he was laid off at one time for breaking a car or engine, that Langer has not the reputation of being a good engineer, not with the men that work with him, not with a good many of them.”"
Witness Lee testified: “I have known Langer about three years ; he was liable to run into trains down there ; he is a reckless man in some respects. I have worked with him days and nights. I was always afraid whenever Langer came to work at night, because he would handle cars so roughly and I told the yardmaster so. I know something about Langer having been laid off by the company. He went over to play pool and he did not come round and he was laid off for five days for not coining round. The next I know Langer had a collision down at Big Blue, and he was laid off for five days. He came back and went to work again, and then got into trouble again and was laid off for thirty days or two-months.” In answer to the question what had happened when he was laid off the last time, witness said: “ He was playing pool or cards in a saloon. He is a reckless, risky man. Other people said he was reckless, ran too fast.”
E. Logan testified: “I am at present yardmaster for the Missouri Pacific. At the time of the Ketchum accident, I had charge of engine 47. Mr. Ketchum was in the engine as I found out afterwards ; this was about a year before March 18, 1883. I asked Mr. Yaughan what my sentence was, he said it ‘ was death.’ They stopped Langer’s and my pay and we had to quit; as to Langer’s reputation, as to being careful or otherwise, the management and handling of trains, there was always more or less kicking in the yards. There is nobody a good engineer in the estimation of the *670yardmen. As to Langer I think there was no better, and others think he was careless. As to running an engine, I would not be able'to judge.” Quite a number of witnesses on the part of defendant testified that Langer was a competent engineer.
As to the question whether the engine was reversed by Langer without warning, the evidence is also conflicting. On this point plaintiff testified as follows: Just as I was making the coupling the head man • reversed his engine and threw it over and shot them all back. I did not see him do it, but from the jar that was at the hind end I think the engine must have been reversed. A man can generally tell. He cannot tell if .it is from reversing the engine or setting the brakes. When a train is stopped suddenly you cannot always tell what is the cause of it. He must have thrown the • engine over from the jar there was around there. They generally whistle when they want brakes, when they are going too fast. It is not usual to slack a train by throwing tlie engine over,, and giving her steam backwards. The ordinary way for men on the train if they are going :around there too fastis to have the men set the brakes. The train was moving nine or ten miles an hour.”
Another witness testified as follows: “I was on this train, twelve or fourteen cars from the head engine, • on a car. I don’t know as anything happened more than he slacked up there. I can’t tell whether he threw Ms engine over or not. The cars started back. I could not see him handle his engine. I could not tell what • sent the cars back unless he reversed his engine. It is not customary for a man to stop trains that way. I did not see any brakes set. I did not get any signal to set brakes. The only occasion of such motion of the train that I know of would be to reverse the engine ; the train -was running seven or eight miles an hour. In my experience in railroading, there is not anything that would produce that kind of a jar except the reversal of the -engine.”
*671Arthur Lee testified: “I was ou the train at the time of the accident about four cars from the engine. When we got near Grand avenue, we were going in the neighborhood of ten miles an hour. I set brakes to-hold them up for fear of a collision, because a train is liable to be down there any minute, and he threw the engine over as I began to set brakes. It almost threw me down. I had no more set the brake up than he threw it over again and then I let the brake off. I commenced to set the brakes because I thought it was my duty to do so. There was no signal given at the time the engine was thrown over. If a man is likely to have a collision he will give a short blow with his whistle. When he slacks up it is not customary to give a signal to the men. If he gets to going too fast he will toot the whistle a little, and we will set up the brakes.”
The evidence on this point is also conflicting. Langer, the engineer, testified that , he was running about five or six miles an hour; that he did not at any time reverse his engine; that he had no occasion to reverse it that morning; that it would not be safe to run at ten miles an hour, and said: “If I was in charge of the engine and running that way, I would call for brakes and reverse my -engine at the same time or shortly ‘ after-wards. I never ran down there as fast as seven or eight miles an hour. If is not customary for the engineer on a switch engine to give a signal to set brakes. If I was running ten miles an hour and wanted to check up suddenly and reverse my engine, I would regard it proper to give a signal for the brakemen to set brakes, and I would do it.”
It is claimed that the demurrer to the evidence ought to have been sustained, for the reason that it shows that plaintiff was injured by his own negligence in not having seen that the car in question was coupled before it was started in the train, and that having worked with Langer, and aware of his incompetency as an engineer *672(if he was incompetent), took the risk of working with him on the train in question. As to this last point, it is fully answered by the evidence of plaintiff that he did not know that Langer was the engineer in charge of the front engine, and as to the coupling of said car, he testified as follows: “It was my duty to see that the engine was coupled to that car, and it was coupled onto the car when we left the yards. We stopped a while at Twelfth street and opened the train ten or twelve cars from the hind end of it to let a lot of teams pass by. I saw McGowan couple the engine to the train before it left the yards. He was standing on the rear end of the engine. I was not with him. I could not tell from where I was whether the pin was actually put in or not. It was supposed to be coupled; the coupling-pin was not broken when I went to couple the car on after it was loose, it was pulled up. The pin was an inch or an inch and a quarter, and eight or ten inches long. When I v^ent to make the coupling the pin was laying on the drawhead. I never noticed exactly how it was laying, until I went to make the coupling. The link was in the deadwood of the engine. I do not know how the pin got upon the drawhead without somebody putting it there. If the coupling had been made I do not know of any possible way for the pin to get upon the drawhead unless the engine was cut off and it was laid up there ; the engine was cut off when I went back to make the coupling. It must have been cut off or the pin pulled at Twelfth street; I was too far away to tell, but I know that the engine could not pull the cars without it was coupled on.”
Under this evidence the question as to whether it showed contributory negligence was for the jury, and the physical fact stated that the car had been pulled from defendant’s yards to Twelfth street would seem to be a demonstration of the fact that the engine had been *673coupled to the car when it left the yards, independent of the positive statement of plaintiff that it had been so coupled. Prom the above review of the evidence it will be seen that, on the points necessary to plaintiff’s case, it is conflicting; but under the rule laid down in Buesching v. Gas Light Co., supra, this is not sufficient to justify a court in sustaining a demurrer to the evidence. In all such cases, it is for the jury to pass upon the conflicting evidence, and determine on which side it preponderates, and for this reason, we are of the opinion that the court properly refused to give the instruction asked in the nature of a demurrer to the evidence.
The only remaining question is as to the action of the court in giving and refusing instructions, and it may be said that an examination of them shows that the jury are told that before they can return a verdict for plaintiff they must find that he was not injured by his own negligence, that Langer was an, incompetent engineer, of whose incompetency defendant had notice, and that Langer was guilty of an act of negligence in reversing his engine without warning, and throwing the cars suddenly and violently backward while plaintiff was coupling the car, and that this negligent act was the cause of plaintiff’s injury. The instructions fairly and plainly put before the jury the issues in the case, and in respect to the action of the court in giving and refusing instructions we see no well-grounded cause of complaint.
The judgment is hereby affirmed with the concurrence of Black and Brace, JJ.; Sherwood, J., dissents; Ray, J., absent.