Schaaf v. St. Louis Basket & Box Co.

• Citation: 131 S.W. 936,151 Mo. App. 35
• Court: Court of Appeal of Missouri (US)
• Decision Date: 10 November 1910
• Parties: SCHAAF v. ST. LOUIS BASKET & BOX CO.

131 S.W. 936

151 Mo. App. 35

SCHAAF v. ST. LOUIS BASKET & BOX CO.

Springfield Court of Appeals. Missouri.

November 10, 1910.

Rehearing Denied December 5, 1910.

1. NEGLIGENCE (§ 37)—DANGEROUS PREMISES —DUTY OF LANDOWNER—CARE REQUIRED.

If a landowner permits his land to be used as a pathway and knows that it is commonly used as such, he is bound to exercise reasonable care to avoid conditions which make the pathway dangerous to persons using it.

2. NEGLIGENCE (§ 139)—ACTIONS — INSTRUCTIONS.

Though a plaintiff may charge negligence in a petition in general terms, instructions submitting negligence to the jury should be specific.

3. APPEAL AND ERROR (§ 882)—INSTRUCTIONS —INVITED ERROR.

Where defendant's request to charge was as broad in submitting the question of negligence in general terms as those given for plaintiff, defendant could not object on appeal that plaintiff's instructions described the alleged acts of negligence in general terms.

4. MASTER AND SERVANT (§ 304)—INJURIES TO THIRD PERSON—KNOWLEDGE OF SERVANT— IMPUTATION TO MASTER.

Where a third person was injured while walking along a pathway, by the alleged negligence of defendant's servants, knowledge by such servants that the pathway was ordinarily used by pedestrians generally was knowledge by the master.

5. TRIAL (§ 192) — INSTRUCTIONS — ASSUMED FACT.

That an instruction assumed that a certain act was the cause of the injury was not error, where there was no dispute in the evidence that such was the fact.

6. NEGLIGENCE (§ 139)—PROXIMATE RESULT— ANTICIPATION.

An instruction in an action for injuries requiring that defendant's servants by the exercise of ordinary care should have anticipated in detail every result of their negligent acts and also that plaintiff would at the particular time be in a position to be injured, in order to authorize a recovery, was erroneous under the rule that a party guilty of negligence is liable for any injury resulting proximately therefrom, whether he should in a given case have anticipated the exact result or not.

7. NEGLIGENCE (§ 136) —DANGEROUS PREMISES — INJURIES TO TRAVELER — QUESTIONS FOR JURY.

In an action for injuries to plaintiff while traveling on a path over defendant's premises, by being struck by a cable used for hauling logs, due to the pulling out of a snatch block, evidence held to require the submission of defendant's negligence to the jury.

Gray, J., dissenting.

Appeal from St. Louis Circuit Court ; Daniel G. Taylor, Judge.

Action by Paul M. Schaaf, by his next friend, Paul A. Schaaf, against the St. Louis Basket & Box Company. Judgment for plaintiff, and defendant appeals. The case was appealed from the circuit court of division No. 2 of the city of St. Louis and was transferred from the St. Louis Court of Appeals. Judgment having been affirmed, a motion for rehearing was sustained and the cause reargued. Affirmed.

This cause was heard at the last term of this court and an opinion rendered affirming the judgment. Motion for rehearing was sustained and the cause reargued at this term.

Seddon & Holland, for appellant. George Safford and Thomas B. Harvey, for respondent.

COX, J.

This is a suit by respondent commenced in the circuit court in the city of St. Louis, to recover damages for injuries alleged to have been inflicted by the negligence of the appellant in operating a tramway for hauling logs from a point near the Mississippi river to appellant's factory on the northeast corner of Second and Arsenal streets in the city of St. Louis.

The testimony on behalf of plaintiff tended to show that the defendant operated a basket and box factory on Arsenal street, in the city of St. Louis. Arsenal street, after intersecting Second street, extends easterly to railroad tracks which are near the river. On the south side of Arsenal street, from Second street to the river, there is a stone wall. Immediately north of this stone wall, and extending the entire length thereof, is a cinder path used by pedestrians. Arsenal street proper, north of this wall extending to the railroad, is about 30 feet wide. A short distance east of Second street, and on the north side of Arsenal street, are the buildings of the defendant, and they extend out to the line of Arsenal street. Just east of the defendant's plant, there is an indentation or jog, and the buildings of the St. Louis Barrel Works, instead of being on the building line of Arsenal street, are set back about 10 or 11 feet. There is a strip of land about the same width between the north line of Arsenal street and the buildings of the St. Louis Barrel Works, and said strip extending from the east side of defendant's plant about 200 feet to certain railroad tracks running north and south near the river. This strip of land was owned by another corporation and was leased by it to the defendant. Upon this strip defendant had, for several years, been maintaining a track or tramway about the width of an ordinary railroad track extending from its plant to the river, a distance of several hundred feet. This tramway was used for the purpose of hauling logs from the river to the factory by means of a car. The car was drawn from the factory to the river by a horse and back by cable, one end of which was attached to a drum at the plant, and the other end to the car. This drum was operated by steam power and as the power was applied, the cable was wound around the drum, thereby drawing the car, or any other object attached to the other end of the cable, toward the drum: In addition to using the car and cable for hauling logs to the factory, the defendant used the cable for the purpose of pulling logs to a point where they could be loaded on the car. This was done by applying the end of the cable with hooks to a log. This process of dragging logs was called by the witnesses, "snaking the logs." The drum, around which the cable was wound, was at the plant of the defendant and north of the track in front of the plant. At a point south and "east of the drum was a pulley around which the cable was required to run, and some distance from that pulley and to the south and east, near or on the track, was another pulley around which the cable also passed. There was a third pulley on the tramway in a culvert under the railroad track, running north and south, near the river. In this space between the second and third pulleys there were blocks of wood with a groove in the center, so that the cable when in use would lie in said groove and was thereby kept in its place between the tracks. In snaking the logs on the land east of the culvert it was often necessary to change the direction of the pulley, and for this purpose a snatch block was used. The evidence shows a snatch block is a pulley that can be moved about from one place to another. As this snatch block was the last pulley from the drum, and between it and the end of the cable or hooks which were attached to the logs no other pulley was used, and it is apparent that the log to which the pulley was attached was always moved toward the snatch block. The snatch block was fastened to groups of logs which were designated by the witnesses as "dead men." It was the intention to fasten the snatch block in such a manner as to make the same immovable while the log was being drawn toward it. The railroad tracks running north and south were high enough so that they passed over the culvert and the tramway was at the bottom of the culvert and ran through it from east to west. At the time of the alleged injuries, a log was being moved from its position between the railroad tracks north of the culvert and toward one of the tracks, with the intention to get the log over the railroad tracks and down the incline to the track at the bottom of the culvert. While the log was being moved, it caught against a tie on the railroad track. From the place where the men were at work moving the log, they could not see the person in charge of the machinery operating the drum, and in order to give a signal when it was necessary to stop the power the defendant had erected an electric bell at the northeast corner of the culvert, and kept an employé at that point to give the signal whenever it was desired to have the power thrown off. At the time the plaintiff was injured, the snatch block was located and fastened to a pile of logs east of the culvert, and on the south side of the tramway. From this snatch block the cable extended up the incline and over the track, and was fastened to a log between the tracks. This, of course, put the strain all on the snatch block, and as long as it held there was no danger from the cable leaving its place at any point between the snatch block and the drum, unless it should break. When the log became fastened, the testimony shows the snatch block gave way and the cable was thereby caused to swing violently to the north and against the electric button or bell and knocked the same down. There was such a strain on the pulley under the culvert that it also gave way and the cable swung from its holdings from the center of the track to the north, so as to make a direct line between the culvert and the drum. At this time the plaintiff was walking eastward on a portion of the strip of land above mentioned between the tramway and the buildings on the north, and was struck by the cable, and was so severely injured that no complaint is made in this court of the amount of damages recovered.

There was evidence that the party at the log gave a signal to the man at the bell to stop the power, but at just what time this signal was given does not appear, but it was evidently given after the log had become fastened and at a time when it was impossible for the bellman to give the signal because of the fact that the bell had been knocked down. The evidence also shows that the log they were snaking at the time of the accident was a large log, 18 to 20 inches thick and 18 feet long, and that it was being pulled toward one of the...