Ryan v. McCully

• Citation: 27 S.W. 533,123 Mo. 636
• Parties: Ryan, Appellant, v. McCully
• Decision Date: 09 July 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 533

123 Mo. 636

Ryan, Appellant, v. McCully

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

John J O'Connor for appellant.

(1) The court erred it taking the case from the jury. There was some evidence that Ryan's fall was caused by defendant's negligence, and where there is any evidence, be it ever so slight, in support of a material issue, it is the duty of the jury alone to determine the weight of such evidence. Kelly v. Railroad, 70 Mo. 608; Barry v Railroad, 98 Mo. 62; Clay v. Railroad, 24 Mo.App. 39. (2) The inference that Ryan was "tilted or thrown off" the beam on which he stood through the sudden dropping of the beam from the derrick, is clearly raised by the testimony of Moore and Van Hook, and this negligent act (the sudden dropping), as well as its result on Ryan, like any ultimate fact in issue, may be established as well by reasonable inferences from other facts as by more direct proof. Blanton v. Dold, 109 Mo. 75; Barnowski v. Halson, 89 Mich. 523; Rice v. McFarland, 41 Mo.App. 498; Rine v. Railroad, 100 Mo. 228. (3) And even though the direct statement of the witness Rick, that Ryan stepped off, may seem stronger than the inference raising from the testimony of Moore and Van Hook, yet, if the circumstances were more favorable to the theory that Ryan was "tilted off or thrown off," the jury might disbelieve Rick, or the jury might disregard his testimony because of his relation to defendant. Steamboat v. Matthews, 28 Mo. 248; Gregory v. Chambers, 78 Mo. 299. (4) Although the employment was dangerous, Ryan was not bound to accept dangers not incident to his work but occasioned by defendant's negligent dropping off the beam from the derrick. Thorpe v. Railroad, 89 Mo. 662, and cases cited; Huhn v. Railroad, 92 Mo. 440; Brown v. Railroad, 99 Mo. 310.

Pollard & Werner and Wentworth Terry for respondent.

(1) There are no errors assigned. (2) If the whole evidence taken together is such that, if it had been submitted and the jury had found a verdict for plaintiff, it would have been the duty of the trial court to order a new trial, this court will not reverse for a refusal so to submit. Landis v. Hamilton, 77 Mo. 555; Powell v. Railroad, 76 Mo. 80; Jackson v. Hardin, 83 Mo. 175. The rule is well settled in this state that a mere scintilla of evidence will not answer as a basis on which to rest a verdict. O'Hare v. Railroad, 95 Mo. 662. (3) A party introducing a witness represents him to the court as worthy of credit, and stands as his indorser, and can not discredit him, though he may contradict him by showing, by other witnesses, that a fact testified to by him is different from that testified to by such witness. 1 Greenleaf on Ev. [14 Ed. 1883], sec. 442, p. 538; 1 Wharton on Ev. [3 Ed. 1888], sec. 549; 2 Best on Ev. [1 Am. Ed. 1876], sec. 645, p. 1080; Bensberg v. Harris, 46 Mo.App. 404.

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

This is an action for statutory damages ($ 5,000) for the death of Thomas Ryan.

Plaintiff is his widow. She charges defendant with causing her husband's death by negligence.

Defendant's answer makes a countercharge of contributory negligence on the part of Mr. Ryan; but admits the fact of his death and that he was in the employ of defendant.

The allegations in the petition which indicate the ground of plaintiff's claim are as follows:

"Plaintiff states that on the tenth day of December, 1891, her said husband was employed by defendant to assist in erecting the scaffolding for an iron bridge which said defendant was building across the railroad tracks on Twenty-first street in this city; that in the course of his employment he was required to stand upon a wooden beam, which was only twelve inches square and eighteen feet long; said beam rested on two long beams, one under each end, and was suspended twenty feet from the ground; there was no railing, ladder, guard or any other support along said beam to protect her husband from falling while standing on said beam; that he was standing on said beam, assisting with other of defendant's employees, under the immediate direction of defendant's foreman, to lower and place on the aforesaid crossbeams, parallel to the beam on which he was standing, a beam of like size as the one on which he was standing; that said beam thus being lowered was suspended above the crossbeams by ropes from a derrick which was operated by steam power, and conducted by defendant; that, in lowering said beam, defendant negligently permitted one end of said beam to strike with violence against said crossbeams, which caused plaintiff's husband to loose his balance and fall to the ground, and thereby causing his instant death; that defendant knew, or by exercise of ordinary care could have known, that it was dangerous to plaintiff's husband to cause him to stand on said beam while engaged at his work, as aforesaid, without any support or means to protect him from falling therefrom; that the death of plaintiff's husband is due to, and was caused by, the negligence of defendant, Wm. McCully, in failing and neglecting to furnish to her said husband a reasonably safe appliance or platform on which to stand while engaged at his said work, as aforesaid, and in negligently and unskillfully lowering the suspended beam so that one end thereof struck one of the crossbeams, thereby increasing the insecurity of his position and aiding him to fall; that by reason of the death of her husband, caused by the negligence of defendant, as aforesaid, plaintiff has been damaged in the sum of $ 5,000," etc.

The case came to trial before Judge Fisher and a jury.

At the close of plaintiff's testimony the court gave an instruction in the nature of a demurrer to the evidence, which forced plaintiff to a nonsuit, with leave, etc.

In due time she moved to set aside the nonsuit; but the court denied the motion.

Having duly saved exceptions to these rulings, plaintiff brought the case to the supreme court by appeal.

The question is whether, under the facts disclosed by plaintiff's evidence, she could properly go to the jury. In considering it, plaintiff is entitled to have the evidence viewed as favorably for her as the facts permit, and to have the benefit of every reasonable inference therefrom, as well.

The relationship of plaintiff to the deceased was admitted, as also that he was in the employ of defendant at the time of his death.

Plaintiff introduced three witnesses, Messrs. Moore, Van Hook and Rick, in the order indicated.

We shall, however, first note the evidence of the last named, as he explains more fully than the others, the particulars of Mr. Ryan's mishap.

Mr. Rick testified as follows (according to plaintiff's abstract on this appeal):

"I was Mr. McCully's foreman in charge of the men while they were erecting that portion of the false work on which Ryan was at work at the time he fell and was killed. I hired him that day believing him to be a bridge man and competent to do the work; he told me he was a bridge man; he was at work only about an hour when he fell. The bridge proper is made of iron and in order to place the iron in position we erected a scaffolding called false work; this was done by standing upright timbers twelve inches square and of sufficient height, which was about twenty feet; several of these are set up, extending across the width of the structure; then on the top of these uprights there is a large beam laid down, each of the uprights supporting it. Now, this may be called a 'bent,' and at intervals of fourteen or sixteen feet there are like bents, erected in the same manner for the whole length of the work. Now, on top of these bents or crossbeams are laid timbers extending lengthwise of the bridge. It was on the end of one of these beams, where it crossed a crossbeam, that Ryan was standing at the time he fell. We had a traveler (that is what the other witnesses called a derrick) for hoisting up timbers and placing them on top in their proper places; we would first erect a portion of this false work, and when the iron stretchers and other parts of the bridge were in place, and the false work was no longer needed, we would remove it along on the top to where it was needed, at another place. We did this with the traveler; the traveler had a post on the front end which was rigged as a derrick with ropes and pulleys. At the time of Ryan's fall we were working on the last span, and were hoisting one of the long beams which I have described intending to move it southward to its proper place in the span; there were four or five beams already in place and I used great care to see that the work was done safely. It was my duty to see that the work was safe. The beam was about to be lowered. I gave the signal to the engineer to lower away; the derrick was operated by steam; the engineer lowered carefully, and the beam swung around towards Ryan, but did not strike or touch him, he was standing on the end of one beam; there were the ends of two beams together and under them a crossbeam, so that he had plenty of room to stand safely; when the beam swung to him, he stepped backwards and off; the...