Eberly v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 03 November 1902
• Citation: 70 S.W. 381,96 Mo.App. 361
• Parties: GEORGE W. EBERLY, Respondent, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

70 S.W. 381

96 Mo.App. 361

GEORGE W. EBERLY, Respondent, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 3, 1902

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

O. M Spencer, Hustin & Brewster and H. J. Nelson for appellant.

(1) The lower court erred in refusing appellant's demurrer to the evidence because the evidence did not prove nor tend to prove that the rail fell directly on respondent's foot, but that it rebounded or rolled on it after falling. (2) Where the plaintiff's own evidence is inconclusive and that of his other witnesses fail to support the issue on his part but rather that of the opposite party there is not sufficient evidence to be submitted to the jury. Rottmann v Bohlmann, 28 Mo.App. 399; Weaver v. Railway, 60 Mo.App. 207; Nugent v. Milling Co., 131 Mo. 241; Callahan v. Warne, 40 Mo. 131; Jackson v. Hardin, 83 Mo. 175; Beichenbeck v. Ellerbe, 115 Mo. 588; Hite v. Railroad, 130 Mo. 132. (3) Under the plaintiff's own evidence he was as a matter of law chargeable with contributory negligence. (4) The lower court erred in giving respondent's first instruction. It submitted to the jury whether the foreman was negligent or reckless in dropping the rail when there was not a scintilla of evidence that he had hold of it in any way. "An instruction not predicated on the evidence is erroneous." Paddock v. Stone, 102 Mo. 226; Burgeman v. Railroad, 104 Mo. 77. "No issue should be submitted to the jury about which there is no evidence." Stone v. Hunt, 114 Mo. 74; White v. Cheney, 20 Mo.App. 397. (5) The lower court erred in giving respondent's instruction as to the measure of damages. Stephens v. Railroad, 96 Mo. 215; Jackman v. Railroad, 57 Mo. 320.

Pross T. Cross and W. S. Herndon for respondent.

(1) This was sufficient to take the case to the jury and its verdict is final. James v. Life Ass'n, 148 Mo. 1; Lamb v. Railway, 147 Mo. 171; Brennan v. Receivers, 72 Mo.App. 107; Tower v. Pauley, 76 Mo.App. 287; Costello v. Fesler, 80 Mo.App. 107; Hopkins v. Modern Woodmen, 68 S.W. 226, and cases cited. (2) Whether the plaintiff was guilty of contributory negligence or not, was, we take it, a question for the jury, under all the evidence. Weber v. Railway, 100 Mo. 194; Corcoran v. Railway, 105 Mo. 406; Fulks v. Railway, 111 Mo. 340; Hopkins v. Modern Woodmen, supra, and cases cited. (3) The second assignment of error, it seems to us, is somewhat "far fetched." A reading of the whole instruction will show that the point made by the appellant is not well taken. The instruction is based on the petition and evidence and properly declares the law. Powell v. Sherwood, 162 Mo. 605. The third assignment of error is that the court erred in the instruction as to the measure of damages. Cullar v. Railroad, 84 Mo.App. 345; Covell v. Railroad, 82 Mo.App. 187.

OPINION

SMITH, P. J.

--This is an action to recover damages for personal injuries resulting to plaintiff on account of the negligence of the defendant. The specific negligence relied on by plaintiff for a recovery was alleged in the petition in this wise: that is to say, that while plaintiff with the other section hands and section foreman were engaged in lifting and loading old steel rails on a push car, the said section hands and section foreman while acting for and in behalf of defendant and in the line of their duties, and while plaintiff was performing the duties of his employment, did without any fault or neglect on the part of plaintiff, negligently, carelessly, recklessly, suddenly and without any warning or order to plaintiff from either said section hands or section foreman, drop and throw and cause to be dropped and thrown, with great force, a steel rail of great weight and length from their hands and the hands of the plaintiff against and upon the ground and right foot of plaintiff, striking him with great force and violence," etc.

The answer was a general denial accompanied by a plea of contributory negligence. There was a trial resulting in a judgment for plaintiff and the defendant has appealed.

The record discloses that defendant both at the conclusion of the plaintiff's evidence and at the conclusion of all the evidence requested an instruction in its nature a demurrer, which was denied. The interposition of these demurrers requires us to review the evidence taken as a whole. There are some divergences in the testimony of the witnesses for plaintiff as to whether the steel rail fell directly upon the plaintiff's foot or whether it fell first to the ground and then rebounded and thereby caused the injury. The plaintiff himself testified:

"We were changing steel rails on the transfer track--we had picked up one of the steel rails and there were two of the rails that were fastened together by splices; after the bolts were struck off they still stuck together and John Grant, the foreman, said for the boys to pick up the rails and shake them loose--about ten of us picked up the south end of the two rails and shook them about five times, but they did not come loose, then the foreman told us to shake them again and we shook them again twice and while they were yet in motion they broke loose and the north end fell on the ground. I was standing to the north. After they had broken apart we were standing there waiting for further orders--what to do with the rail, whether to drop it or to put it on the push car. While I was standing in that position holding the rail and the other men standing there without any orders from any one, the rail was dropped on the ground on my foot."

The plaintiff on cross-examination further testified that in two or three days after his injury occurred, that while suffering with pain and at times dizzy he filled out a statement of the facts relating to such injury and delivered it to the defendant's section foreman, and that in that paper it was stated that "the rail got upon my foot by bounding on it after it struck the ground." He further testified that his recollection of the facts at the time he gave his testimony was better than it was when he made said statement. The section foreman and other witnesses corroborated plaintiff's testimony that the steel rail when it was dropped fell upon his foot. Other witnesses for both plaintiff and defendant testified that when the said rail was dropped that it first struck the ground and then there was a rebound which caused the injury. The section foreman also testified that there was no order given by him to drop the rail and that he did not know it was going to be dropped, it being his intention to have it put on the push car.

I. If the section hands negligently dropped or threw the rail down and in consequence of such negligence it struck the plaintiff's foot, unless plaintiff himself was not then exercising ordinary care, there was liability; and it would make no difference whether the rail so negligently dropped or thrown descended directly upon plaintiff's foot or rebounded upon it. Evidence showing that the injury occurred either way would support the issue. There would be no fatal variance if all the evidence had shown that the plaintiff's foot had been caught by the rebound of the rail and not under it when it first struck the ground. The defendant succeeded at the trial in obtaining from the court an instruction to the jury to the effect that plaintiff was not entitled to recover if the rail first fell to the ground and then rebounded on the plaintiff's foot. The propriety of the action of the court in giving this instruction is not before us now for review, but in the consideration of the effect of the evidence adduced by the plaintiff it is not out of place to say that if all such evidence tended to prove that the rail was negligently dropped or thrown down and the plaintiff was hurt by its rebound, that there would be liability. The negligence which was the direct and proximate cause of the plaintiff's injury was the dropping or throwing down the rail, and whether the rail was dropped directly on plaintiff's foot or whether it first fell to the ground and then rebounded on his foot, would be unimportant. Evidence showing that the negligent act of dropping or of the throwing of the rail caused the infliction of the injury in either way would be sufficient to carry the case to the jury.

Touching the supposed inconclusiveness of the plaintiff's own testimony, it is to be observed that the section foreman who was present directing the movements of the men who dropped or threw the rail causing the injury testified that though the occurrence took place in his presence and before his eyes he could not tell just how it happened, and it would not therefore be strange that in so short a time thereafter, while in the condition the plaintiff testified he was then in, that his recollection of just how the accident took place was not as clear as it was later on when his physical and mental condition approached nearer the normal. And even if the statement made by plaintiff shortly after the injury was contradictory of his testimony at the trial, the weight of his evidence was for the consideration of the jury. Lamb v. Railway, 147 Mo. 171.

The plaintiff, it seems, was a common day-laborer fifty years of age, and from aught that appears from his testimony he was a man of at least average probity. We see nothing in the repugnancy of his testimony as explained by him which ought to render it so inconclusive that neither it nor that of the other witnesses supporting the affirmative of the issue is insufficient to make out a prima facie case. An examination of the plaintiff's testimony has not convinced us that in the light of the adjudged cases cited by defendant we should...