Ischer v. St. Louis Bridge Co.

• Decision Date: 21 May 1888
• Citation: 8 S.W. 367,95 Mo. 261
• Parties: ISCHER v. ST. LOUIS BRIDGE CO. et al.
• Court: Missouri Supreme Court

8 S.W. 367

95 Mo. 261

ISCHER v. ST. LOUIS BRIDGE CO. et al.

Supreme Court of Missouri.

May 21, 1888.

MASTER AND SERVANT — NEGLIGENCE — VARIANCE.

In an action by an employe against a railroad company for personal injuries alleged to have been received by reason of the incompetency, recklessness, and brutal conduct of the defendant's foreman, of which defendant had, or might have had, knowledge, proof that the foreman cursed the plaintiff, and compelled him to take the position in which he was hurt, and that, in unloading iron pipes from a car, the accident by which plaintiff was injured was occasioned by a defect in the iron bar placed under the pipe, and the failure to place pieces of wood under the pipes to prevent them from slipping, varies from the petition, and will not sustain a judgment for plaintiff.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Action by Edward Ischer against St. Louis Bridge Company and Tunnel Railroad Company.

S. M. Breckenridge and M. F. Watts, for appellant. A. R. Taylor, for respondent.

NORTON, C. J.

This is an action for damages for personal injuries, in which plaintiff recovered judgment for $5,000, from which defendants have appealed. The cause of action alleged in the petition is as follows: That plaintiff was in the employment of defendant unloading iron pipes from certain cars at the city of St. Louis, near the Union depot; that while so engaged one of the iron pipes rolled against him, and caught one of his legs, crushing the bones so that it had to be amputated. It is alleged "that said iron pipe was caused to roll upon and against and crush plaintiff's leg, as aforesaid, through the negligence and carelessness of defendant's agent, one Christian Schouv, defendant's foreman in directing and controlling the unloading of said iron pipes. That said foreman, at the time of said injury, was driving the plaintiff and his co-employes with such curses and threats that the said work could not be done with due safety to said employes; which said action of said foreman contributed directly to cause said injury. That said Schouv compelled plaintiff to take a place of great and unnecessary danger by threats and cursing him; and then, by his recklessness and negligence in hurrying plaintiff and his co-employes in said work, caused said iron pipe to roll upon and injure plaintiff as aforesaid. That said Christian Schouv was unfit and incompetent to discharge the duties of such foreman by reason of his reckless and brutal habit and disposition, of which defendant had knowledge at the time he was employed, or could by the exercise of ordinary care have known it." The answer was a general denial. The action of the trial court in refusing to sustain a demurrer to the evidence, and in giving and refusing instructions, is assigned for error. But two witnesses (the plaintiff being one of them) were examined as to what took place when plaintiff was injured, and their evidence tended to show the following state of facts: That in April, 1880, plaintiff was in the employ of defendants in unloading iron pipes from box car. These pipes were from 12 to 14 feet long, about 1 foot in diameter weighing 1,800 or 2,000 pounds, and were placed in both ends of the cars, — two tiers in each end; one tier on the other. That plaintiff had been in defendant's employ about eight days, and was one of a gang of six or seven men, of which Christian Schouv was foreman. That at the time of the accident plaintiff and others of the men were shoving one of said pipes out of the car door; that the pipes had all been removed out of one end of the car, and the upper row in the other end had also been removed, leaving the bottom row of pipes. In order to get the pipe out of the car, one of the workmen had inserted a wooden bar in one end of the pipe, just high enough to permit another workman to place a small iron bar under it, on which, acting as a pivot, the pipe was turned, in order to launch it out of the side door of the car. The custom had been to "chock" the pipes on the floor of the car with small blocks of wood provided for that purpose, to prevent them from rolling when one of the pipes was removed. The evidence showed that this was usually done by Schouv, and when not done by him was done...