Applegate v. Quincy

• Decision Date: 10 July 1913
• Citation: 158 S.W. 376,252 Mo. 173
• Parties: THOMAS APPLEGATE v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

158 S.W. 376

252 Mo. 173

THOMAS APPLEGATE v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

July 10, 1913

Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.

Affirmed (conditionally).

Dudley & Selby, Hall & Hall and J. G. Trimble for appellant.

(1) The trial court erred in overruling appellant's objection to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action against the defendant. Howsmon v. Water Co., 119 Mo. 308; Phoenix Ins. Co. v. Water Co., 42 Mo.App. 118; Manny v. Frasiers, 27 Mo 419; Page v. Becker, 31 Mo. 466; Street & Johnson v. Goodale, Barger & Co., 77 Mo.App. 321; Harberg v. Arnold, 78 Mo.App. 239; State ex rel v. Loomis, 88 Mo.App. 507; Lewis v. Land Co., 124 Mo. 684. (2) There was a total failure of evidence to establish the allegations of the petition and the demurrer to the evidence should have been sustained for that reason. There was no evidence that plaintiff was pinching the car, or blocking it, by placing the end of a heavy iron bar between the rail and the wheel, causing the car to move slowly and perfectly at the time of the injury as charged in the petition. The injury was the result of plaintiff's own negligence, and for that reason he was not entitled to recover. Fulwider v. Gas, L. & P. Co., 216 Mo. 598. Plaintiff's own negligence caused his injury and bars a recovery. Huss v. Bakery Co., 210 Mo. 53; Spiva v. Coal & Mining Co., 88 Mo. 75; Millsap v Beggs, 122 Mo.App. 7; McIntosh v. Railroad, 58 Mo.App. 288; Wray v. Light Co., 68 Mo.App. 380; Beymer v. Packing Co., 106 Mo.App. 726; Junior v. Light & Power Co., 127 Mo. 84; Loving v. Railroad, 128 Mo. 349; McCarty v. Hotel Co., 144 Mo. 397; George v. Manufacturing Co., 159 Mo. 333; Holmes v. Brandenbough, 172 Mo. 53; Doerr v. Brewing Co., 176 Mo. 547; Smith v. Box Co., 193 Mo. 715; Dressie v. Railroad, 145 Mo.App. 163; Deg v. United Railways Co., 140 Mo.App. 461; Holland v. Railroad, 210 Mo. 338. The plaintiff could have readily seen the conditions of the track if he had used ordinary care. He was a man of mature years, and a skilled workman, and was capable of judging the natural and probable effect of moving a heavily loaded car over an uneven track with low joints. He could have seen the condition. Moore v. Railroad, 176 Mo. 528; Cooley on Torts (2 Ed.), 812; Wheeler v. Wall, 157 Mo.App. 44; 7 Am. & Eng. Ency. Law (2 Ed.), 385, 386; Kinney v. Onsted, 113 Mich. 96; Gibson v. Loinard, 143 Ill. 182, 36 Am. St. 376; Plummer v. Dill, 156 Mass. 426, 52 Am. St. 463; Sparks v. Siebrecht, 45 N.Y.S. 993; Atkins v. Transportation Co., 182 Ill. 237; Brisco v. Railroad, 103 Ga. 224; Quinn v. Railroad, 162 Ind. 442; Hogan v. Railroad, 150 Mo. 55. To entitle plaintiff to recover it devolved upon him to prove that the particular act of negligence complained of caused his injury. McGee v. Railroad, 214 Mo. 530; Glaser v. Rothschild, 221 Mo. 180; Kinlen v. Railroad, 216 Mo. 145; Decker v. Railroad, 149 Mo.App. 537. The condition of appellant's unloading track was not the proximate cause of his injury, but his own negligent and inexperienced manner in using the bar, for which appellant was not liable. Richmond v. Railroad, 133 Mo.App. 463; Saxon v. Transfer Co., 145 Mo.App. 693; Lymon v. Dale. 156 Mo.App. 431; Haley v. Transit Co., 179 Mo. 30; Monday v. Railroad, 136 Mo.App. 692. (3) There was not sufficient evidence to support or authorize the giving of plaintiff's instruction 1. It ignores both the pleadings and the evidence. The plaintiff in the petition specifically alleges the manner in which he was attempting to stop, or block the car; "that is, by placing the end of a heavy iron bar between the rail and wheel." Watson v. Railroad, 133 Mo. 251; McCarty v. Hotel Co., 144 Mo. 402; McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 515; Schneider v. Railroad, 75 Mo. 295. The plaintiff alleges just what he was doing and just how he was doing at the time of the injury, he cannot be permitted to recover under an instruction submitting a general allegation of negligence, on the part of appellant, and of ordinary care on his part. Fulwider v. Gas, Light & Power Co., 216 Mo. 597; Boyd v. Transit Co., 108 Mo.App. 303. (4) The damages assessed by the jury was excessive, and the result of passion and prejudice engendered by sympathy and the inflammatory language and conduct of plaintiff's attorney in his closing argument. Clifton v. Railroad, 232 Mo. 714.

Platt Hubbell and George Hubbell for respondent.

(1) Plaintiff's petition states facts constituting a cause of action. The plaintiff's cause of action does not arise by reason of a breach of any express contract. The contracts between the defendant, the brewery company, Davis, and the plaintiff, were proved simply to show that the plaintiff was rightfully and legally working in connection with this switch track, and working in connection with defendant's business. (2) Defendant owed the plaintiff the duty to keep and maintain its switch track in a reasonably safe condition for the uses that the plaintiff might properly make of it. 23 Am. & Eng. Ency. Law (2 Ed.), p. 739; 1 Thomp. Neg., sec. 978; 2 Ib., sec. 1841; Sykes v. Railroad, 178 Mo. 712; Young v. Oil Co., 185 Mo. 666; Railroad v. Hummel, 167 F. 89. If the track was negligently constructed, as alleged, and that condition occasioned the injuries alleged, defendant would be charged with such negligence. Railroad v. Bryant, 66 S.W. 804; Railroad v. Rodes, 102 S.W. 322; Railroad v. Farris, 100 S.W. 870; Dooley v. Railroad, 110 S.W. 135. Tateman v. Railroad, 96 Mo.App. 448; 3 Elliott on Railroads, sec. 1265c; Butler v. Railroad, 155 Mo.App. 297; Glaser v. Rothschild, 221 Mo. 185; Lessenden v. Railroad, 238 Mo. 247. An injury caused by "low joints" is within the foregoing rules. Railroad v. Benton, 132 F. 461; Shugart v. Railroad, 133 F. 505; Houts v. Transit Co., 108 Mo.App. 686; Dumphy v. Stock Yards, 118 Mo.App. 516; Hach v. Railroad, 208 Mo. 581; Railroad v. Shaughnessy, 81 S.W. 1026. (2) Plaintiff proved the facts hypothesized in his first instruction. Plaintiff alleged that the defendant negligently maintained a defective switch track. Whether this allegation is true, was properly submitted to the jury. (3) Choice of ways or method of doing the work, is not negligence, unless the choice is knowingly or negligently made. Browning v. Railroad, 118 Mo.App. 449; Well v. Moran Bros. Co., 104 P. 174; Olson v. Erickson, 102 P. 400.

OPINION

LAMM, J.

Plaintiff began his action in the Grundy Circuit Court for personal injuries grounded on negligence. The venue was changed to Daviess on defendant's application. From a judgment on a verdict for $ 10,000, defendant, on apt and due steps, appeals. An outline of the case is this:

A brewing company of Quincy, Illinois, built a cold-storage beer warehouse hardby defendant's spur track (known as a "team" track) at Trenton, Missouri, on defendant's right of way. This warehouse had three doors next to the team track and was built under a contract between defendant and said brewing company. Presently, under a contract between brewing company and one Davis, a beer dealer at Trenton, said Davis got the use of the warehouse to store beer purchased by him from the brewing company in car load lots and carried by defendant from Quincy to Trenton and delivered at the warehouse at so much per car. The details of these contracts are unimportant except as evidence of a running arrangement for the mutual benefit and profit of defendant, Davis and brewing company. Certain kinds of loaded freight cars (among them beer cars) consigned to Trenton over defendant's railroad were customarily stored on this team track to be unloaded by their respective consignees. Under the running arrangement between brewing company, defendant and Davis, when a car of beer came in it was "spotted" on its team track, so that the car door would be opposite the east or west door of the warehouse. The brake was then set and, by use of a plank runway from the car door to the warehouse door, the beer would be unloaded into the warehouse, kegs in one door and the bottled goods in another. The warehouse was so arranged that this could only be done by moving the cars. When defendant spotted such car, as aforesaid, the unloading was done by Davis. Any spotting of the car contemplated, however, that there would be a necessity to move the car from one door to the other of the warehouse, and to do that man power was necessary -- the team track being a gravity track on a grade of one per cent fall to the east.

On the 8th day of May, 1909, defendant company "spotted" a car load of beer, consigned to Davis by said brewing company, in front of this warehouse on its team track in such way that the car door was opposite the west door of the warehouse, set the brake and left the car there to be moved as necessary, unloaded and then reloaded by Davis from the warehouse with "empties" ready for reshipment. This car was loaded in such way that to unload its contents into the warehouse it was necessary to move it by manpower, as usual, from one door to the other, say nineteen feet. The unloading as well as the moving were wholly performed by Davis's men, as usual. Plaintiff was an employee of Davis in and about moving and unloading the car as were all others so engaged. In moving this car it gathered speed unexpectedly en route, and ran on a pinch bar used by plaintiff to chock it. The pinch bar thereat caught the top of plaintiff's boot leg and crushed his right leg down, mashing the bone of that leg between the knee and ankle, making immediate amputation necessary.

More than one ground of negligence is averred in the petition, but only...