Beebe v. St. Louis Transit Company

• Decision Date: 13 July 1907
• Citation: 103 S.W. 1019,206 Mo. 419
• Parties: FRANK O. BEEBE, Administrator of Estate of DAVID W. SILLS, Deceased, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

103 S.W. 1019

206 Mo. 419

FRANK O. BEEBE, Administrator of Estate of DAVID W. SILLS, Deceased, v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 13, 1907

Appeal from Boone Circuit Court. -- Hon. Alex. H. Waller, Judge.

Reversed.

Boyle & Priest, Edward T. Miller and J. W. Jamison for appellant.

(1) A master is not required to furnish his servant absolutely safe appliances. He is not an insurer of the sufficiency, nor of the absolute safety of the appliances furnished by him. Chrismer v. Bell Tel. Co., 194 Mo. 189; Bowen v Railroad, 95 Mo. 268; Gutridge v. Railroad, 105 Mo. 520; Blanton v. Dold, 109 Mo. 64; Brown v Herschy L. & L. Co., 65 Mo.App. 162; Marshal v. K C. Hay Press Co., 69 Mo.App. 256; Glascock v. Swofford Bros. D. G. Co., 74 S.W. 1040; Zellers v. Mo. Water & Light Co., 92 Mo.App. 107; Glover v. Kansas City Bolt & Nut Co., 153 Mo. 327. An employer cannot be adjudged guilty of a failure of duty where he furnished machinery and appliances which are reasonably safe when used in the manner intended to be used, but which may become dangerous if their use is perverted by the employee. Grattis v. Railroad, 153 Mo. 380. A master may use any reasonably safe machine he chooses. Chrismer v. Bell Tel. Co., 194 Mo. 189; Muirhead v. Railroad, 19 Mo.App. 634; Bowen v. Railroad, 106 Mo. 429; Huhn v. Railroad, 92 Mo. 440; Friel v. Railroad, 115 Mo. 503; Blanton v. Dold, 109 Mo. 520; Berning v. Medart, 56 Mo.App. 443; Higgins v. Railroad, 43 Mo.App. 547; Harrington v. Railroad, 78 S.W. 663; Curtis v. McNair, 173 S.W. 170. Whatever is according to the general, usual and ordinary course adopted by those in the same business is reasonably safe within the meaning of the law. The test is general use. Mason v. Fourteen Mining Co., 82 Mo.App. 367; Kane v. Falk Co., 93 Mo.App. 207; Minnier v. Sedalia, etc., 167 Mo. 99. No inference of negligence can arise where the evidence shows that an implement used by a servant in the performance of his work is such as is ordinarily used for like purposes by persons engaged in the same kind of business. Bohn v. Railroad, 106 Mo. 429; Holt v. Railroad, 84 Mo.App. 443. Negligence of the master is not presumed, but must be shown. It must be shown that there was a defect, and that it was, or ought to have been, known to defendant. Brooks v. Railroad, 71 S.W. 507. (2) As under the law defendant was not required to exercise the highest degree of care for the safety of plaintiff, the doctrine of res ipsa loquitur does not apply. Glascock v. D. G. Co., 106 Mo.App. 664; Wojtylak v. Coal Co., 188 Mo. 260; Fuch v. St. Louis, 167 Mo. 620; Hough v. Austin, 46 Ohio St. 386; Cosulich v. Standard Oil Co., 122 N.Y. 123; Walker v. Railroad, 71 Iowa 658; Losee v. Buchanan, 51 N.Y. 476; Oglesby v. Railroad, 177 Mo. 272; Hope Salt Co. v. Vieth, 57 L. R. A. 410; Girard v. Griswold, 8 Am. Neg. Rep. 643; Cothron v. Packing Co., 98 Mo.App. 343; Goranson v. Mfg. Co., 186 Mo. 300; McGrath v. Railroad, 197 Mo. 104; Trotter v. Railroad, 99 S.W. 508. (3) The duty of the master to inspect the appliances in order to maintain them in a reasonably safe condition is continuous. This does not mean that a continuous inspection must be exercised from moment to moment, but only that it must be such as is reasonable under all the circumstances. Krampe v. Brewing Assn., 59 Mo.App. 277; Shea v. Railroad, 76 Mo.App. 29; Huth v. Dhole, 76 Mo.App. 671. There must be substantial evidence that the defendant failed to exercise ordinary care in keeping the appliances in repair. O'Donnell v. Baum, 38 Mo.App. 245; Krampe v. Brewing Assn., 59 Mo.App. 277; Breen v. Cooperage Co., 50 Mo.App. 202; Bohn v. Railroad, 106 Mo. 429. (4) There is no evidence to support the verdict, and the verdict is against both the evidence and the weight of the evidence and the law as declared by the court, and there was no evidence to support plaintiff's instructions. Chrismer v. Bell Tel. Co., 194 Mo. 189; Danker v. Goodwin Mfg. Co., 102 Mo.App. 723; State v. Northway, 164 Mo. 513.

Richard F. Ralph and Barclay & Fauntleroy for respondent.

(1) The occurrence out of which this action grows demonstrates, by its own circumstances, that defendant was negligent (in the particulars charged against defendant in the petition) requiring some explanation by defendant. If ever facts speak for themselves, they do in this case, in favor of this motorman, against whom not even an allegation of any sort of negligence on his part is made. Jones v. Railroad, 178 Mo. 544; Gannon v. Gas Co., 145 Mo. 502; Rose v. Railroad, 11 F. 438; Tateman v. Railroad, 96 Mo.App. 448; Judson v. Powder Co., 107 Cal. 549; Kearney v. Railroad, L. R. 5 Q. B. 411; McCoy v. Gas Co., 212 Pa. St. 255; Houston v. Brush, 66 Vt. 346. The precept that the "thing itself speaks" (as applying to evidence of negligence) is held to govern cases of master and servant as well as other actions. Gorman v. Milliken, 86 N.Y.S. 699; Blanton v. Dold, 109 Mo. 64; Nat. Biscuit Co. v. Wilson, 78 N.E. 251; Solarz v Railroad, 29 N.Y.S. 1123 (affirmed, 155 N.Y. 645); The Wm. Branfoot, 48 F. 916; Posey v. Scoville, 10 F. 140; Sackewith v. Biscuit Co., 78 Mo.App. 144; Shuler v. Railroad, 87 Mo.App. 618; Snyder v. Elect. Co., 43 W.Va. 668; Highland Bay Co. v. Pouch, 124 F. 148; Griffen v. Manice, 166 N.Y. 195; Dean v. Railroad, 97 S.W. 910. (2) But there was also direct testimony to prove negligence of defendant as alleged. The undisputed testimony of the experts proves that such a shock or "explosion" as here is shown, was not ordinary or usual in the employment, but that it necessarily resulted from negligence charged in omitting the duty of inspection to discover the obvious defective condition of the electrical machinery. Such a dangerous agency as electricity demands care in its use by the master, affected by the circumstances. Reasonable care toward employees requires that the machinery should be inspected occasionally, and be maintained in a condition precluding such an "explosion" as here appears. Geisman v. Elect. Co., 173 Mo. 654; Alexander v. Light Co., 209 Pa. 571; Bradford v. Kizer, 113 F. 894; Railroad v. Lynch, 90 S.W. 511; Schoepper v. Chem. Co., 113 Mich. 582; Moran v. Engine Co., 21 R. I. 386; Thomas v. City, 97 S.W. 420. (3) The expert proof affirmatively indicates the cause of the "explosion" to be the defective condition of the controller, and want of necessary inspection to reveal and to correct that condition. The duty resting on the master was not performed in this case, according to the positive evidence, even beyond the reasonable inferences to be drawn from the facts of the "explosion" and its deadly force. Circumstantial evidence of the cause of such an "explosion" or injury as here appears is sufficient, and it need not exclude every other possible hypothesis. Delahunt v. Tel. Co., 215 Pa. 241; Railroad v. McDade, 191 U.S. 64; Rose v. Transpt. Co., 11 F. 438; Woodall v. Railroad, 78 N.E. 446; Grimsley v. Hankins, 46 F. 400; Excelsior Co. v. Sweet, 57 N. J. L. 22.

OPINION

BURGESS, J.

This is an action for damages for personal injuries, and was instituted by David W. Sills, the original plaintiff herein, against the defendant in the circuit court of the city of St. Louis. The venue of the cause, upon application of the plaintiff, was changed to the circuit court of Boone county, at the June term, 1904, of which court, upon trial had, a verdict and judgment in the sum of fifteen thousand dollars was rendered in favor of plaintiff. Defendant's motion for a new trial having been overruled, it appealed. Since the said judgment was rendered, David W. Sills, the original plaintiff, died, and the cause was revived by consent in this court in the name of his said administrator.

It is stated in the petition that on December 12, 1902, defendant was engaged in operating a system of electric railways in the city of St. Louis; that plaintiff was in the employ of defendant, and on the last-mentioned date had been assigned by defendant to duty as motorman, and plaintiff was engaged in his duties on defendant's car No. 1921, which was north-bound on Grand avenue, near the Grand avenue bridge, about 5:45 o'clock a. m., when a sudden explosion took place within the controller box of said car.

Said controller box was an appliance fastened to said car on the front platform. "It contained machinery used to apply and regulate and to cut off the electrical force which constituted the motive power of said car. Said machinery was hidden from view in said box and was operated by a controller-lever on the top (outside of said box). It was part of the duty of plaintiff as such motorman to manipulate said lever on said controller in order to set said car in motion and to regulate its momentum, and to stop said car as occasion might require, in the operation of said car, for the purposes of defendant's business as a carrier of passengers on its said line of street railway. Plaintiff was then and there ignorant of the construction and interior arrangement of said machinery so used to operate said car, and plaintiff's duties as motorman for defendant did not require him to have any knowledge of said machinery within said box, but merely to move said controller as aforesaid in the operation of said car. Said explosion of said controller box on said day, December 12, 1902, was due to the omission of defendant to use reasonable and ordinary care to maintain said controller and the machinery within it, in a reasonably safe condition for use by plaintiff as motorman upon said car, as aforesaid, and to defendant's omission to use ordinary care to take reasonable precautions to have the operation of the electrical power in and upon said machinery ordinarily safe for employees, required to use same in the...