Applegate v. Quincy, O. & K. C. R. Co.

• Decision Date: 28 June 1913
• Citation: 158 S.W. 376
• Court: Missouri Supreme Court
• Parties: APPLEGATE v. QUINCY, O. & K. C. R. CO.

158 S.W. 376

APPLEGATE v.QUINCY, O. & K. C. R. CO.

Supreme Court of Missouri, Division No. 1.

June 28, 1913.

Rehearing Denied July 10, 1913.

1. PLEADING (§ 428) — COMPLAINT — ATTACK — OBJECTIONS TO EVIDENCE — TIME.

While a complaint may be attacked for the first time by an objection to the introduction of any evidence under it, such objection will not be sustained because of lack of certainty or definiteness in the allegation or for informality in the statement of an essential fact or because a cause of action is defectively or obscurely stated, but can rest only on a fatal jurisdictional mistake, being disallowed if by reasonable intendment or by fair implication from facts stated or by most liberal construction the essential allegations may be pieced out or made clear by reasonable inference.

2. ACTION (§ 27) — NATURE — CONTRACT OR TORT.

Where plaintiff employed by a consignee of certain beer to assist in unloading the beer from a car into a warehouse along the side track was injured while endeavoring to chock the car as it was being moved by man power with the aid of gravity from one door of the warehouse to another, and alleged that the injury resulted from a low joint in the track which caused the car suddenly to escape from the control of those in charge of it and mashed plaintiff's limb requiring amputation, the petition charged a cause of action ex delicto, the allegation referring to the contract between defendant and the persons operating the warehouse, being merely inducement intended to show that plaintiff was an invitee and not a trespasser, and hence the petition was not objectionable for failure to show that such contract was not made for plaintiff's benefit.

3. RAILROADS (§ 275) — PERSONS UNLOADING CARS — DUTY OF RAILROAD COMPANY.

Where defendant railroad company maintained a team track adjacent to a beer warehouse, and servants of the operators continually loaded and unloaded cars there, such persons were invitees, and not bare licensees or trespassers, and hence the railroad company owed them the duty of exercising ordinary care to keep the track in reasonably safe condition for the purposes intended.

4. RAILROADS (§ 282) — PERSONS ON OR NEAR TRACK — MOVEMENT OF CARS — DEFECTIVE TRACK — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

In an action for injuries to the servants of persons operating a beer warehouse while engaged in attempting to stop a car they were engaged in unloading as it was being moved by man power from one door of a warehouse to another, evidence held to require submission to the jury of the question of plaintiff's negligence in the use of an iron bar to chock the car and of defendant's negligence in permitting a low joint in the track which was claimed to have caused the car to escape from the control of those in charge of it.

5. RAILROADS (§ 282) — PERSONS ON OR NEAR TRACK — INVITEES — INSTRUCTIONS.

Where, in an action for injuries to an invitee on a railroad track engaged in unloading a car into a warehouse, plaintiff alleged that, while he was engaged in blocking the car with an iron bar as it was being moved from one door of the warehouse to another, it was caused suddenly to lurch forward by reason of a low joint in the track and jerked an iron bar out of plaintiff's hand, and so injured his limb that amputation was necessary, an instruction submitting to the jury whether plaintiff was engaged in blocking the car with an iron bar, etc., and requiring them to find that he was in the exercise of due care, sufficiently identified the transaction with the plan of operation pleaded, and was not defective as substituting merely the exercise of ordinary care for the alleged plan of operation pleaded authorizing the jury to go outside the pleadings and evidence.

6. NEGLIGENCE (§ 119) — PLEADING — GENERAL ALLEGATIONS.

Where plaintiff alleges general negligence, and follows the general allegation with specifications of negligence, or where he alleges specific negligence without a general charge, he is confined in his proof and instructions to negligence in the very particulars specified, and may not recover on proof of negligence generally, but not so if only general negligence is alleged.

7. RAILROADS (§ 282) — JOINT NEGLIGENCE — SEPARATE LIABILITY.

Where, in an action against a railroad company for injuries to an invitee by the escape of a car on a side track due to a low joint, defendant pleaded that plaintiff's injuries were due to the negligence of other persons not in its employ, and tried its case partly on that theory, claiming negligence on the part of the person who loosened the brake at the time the car was started, the court properly charged that if the jury found defendant was negligent, and that plaintiff was exercising due care, then, if defendant's negligence combined and united with that of some third person to cause the injury, it would not defeat a recovery against defendant.

8. TRIAL (§ 253) — INSTRUCTIONS — REQUEST TO CHARGE.

In an action against a railroad company for injuries to an invitee, a request to charge that, if plaintiff received his injuries because of the carelessness of himself and others working

with him, he could not recover, was properly refused as ignoring the issue of defendant's negligence, etc.

9. APPEAL AND ERROR (§ 1033) — HARMLESS ERROR — INSTRUCTIONS — MODIFICATION.

Defendant requested the court to charge that, if plaintiff "knowingly or negligently" chose an unsafe way of doing what he undertook to do when there was a safe way open, the verdict must be for defendant, even though the jury should believe his reason for taking the unsafe way is inexperience or ignorance. Held, that the court did not err in modifying the request by inserting the words quoted so far as defendant was concerned, since the insertion of the word "negligently" was proper, and the word "knowingly" merely clogged plaintiff's case.

10. DAMAGES (§ 132) — PERSONAL INJURIES — EXCESSIVENESS.

Plaintiff, a man of 53 years of age and earning $25 to $40 a month by doing odd jobs of carpenter work, was employed temporarily to assist in unloading a beer car at a warehouse, and while doing so suffered an injury to his right leg, requiring amputation above the ankle.There were no complications or other injuries, and the surgeon who performed the operation testified that $200 would be a reasonable charge for it and the resulting attention.Held, that a verdict allowing plaintiff $10,000 was excessive, and should be reduced to $7,500.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Thomas Applegate against the Quincy, Omaha & Kansas City Railroad Company.Judgment for plaintiff, and defendant appeals.Affirmed on condition.

J. G. Trimble, of Kansas City, Dudley & Selby, of Gallatin, and Hall & Hall, of Trenton, for appellant.Hubbell Bros., of Trenton, for respondent.

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, Ill., built a cold storage beer warehouse hardby defendant's spur track (known as a "team" track) at Trenton, Mo., 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 the 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 the 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 the 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 oposite 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, the 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 1 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 man power, as usual, from one door to the other, say 19 feet.The unloading as well as the moving were wholly performed by Davis' men, as usual.Plaintiff was an employé 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...