Bible v. St. Louis And San Francisco Railroad Co.
| Decision Date | 03 March 1913 |
| Parties | J. P. BIBLE, Respondent, v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Carr McNatt, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans and Mann, Todd & Mann for appellant.
(1) The court erred in telling the jury in plaintiff's instruction 2 defining the measure of damages that they should take into account all loss of earnings, if any, which they may find from the evidence plaintiff has already sustained by reason of such injuries, and that they should take into account all loss of earnings, if any, that they may find from the evidence plaintiff will sustain in the future as direct result of such injuries, if any, without limiting the right to find for the plaintiff for loss of earnings to the amount alleged in his petition. Smoot v. K. C., 194 Mo. 513; Radtke v. Basket & Box Co., 229 Mo. 1; Heinz v. Railroad, 143 Mo.App. 38; Tinkle v Railroad, 212 Mo. 471. (2) The court erred in refusing to instruct the jury at the instance of the defendant that under the law and the evidence plaintiff was not entitled to recover, and its verdict should be for the defendant. McGaffrey v. Glue Co., 143 Mo.App. 24; Lowe v Railroad, 148 S.W. 956; Covey v. Railroad, 86 Mo. 635; Hicks v. Railroad, 46 Mo.App. 309; Harris v. Railroad, 146 Mo.App. 524; Knorpp v. Wagner, 195 Mo. 663; Lucey v. Oil Co., 129 Mo. 32; Holloran v. Foundry Co., 133 Mo. 477; Denker v. Milling Co., 135 Mo.App. 340; Myer v. Glass Co., 129 Mo.App. 556; Bradley v. Tea & Coffee Co., 213 Mo. 329.
Sizer & Kemp for respondent.
(1) The demurrers were properly overruled, for it was admitted that the rope was defective--at least there was no testimony offered to disprove plaintiff's testimony and that of his witnesses, and there was no inspection and no attempt to show a semblance of inspection, and plaintiff was under the immediate control of his boss at the time, and if there is any evidence to sustain the allegations of negligence, the case should be submitted to the jury, and this court will give to plaintiff's evidence the strongest and most favorable construction. Phelan v. Construction Co., 227 Mo. 704; Klankenbrink v. Railroad, 172 Mo. 688; Holloway v. City, 184 Mo. 19. (2) With the proposition that this court must give every weight and every reasonable inference to plaintiff's evidence, we find that the evidence absolutely establishes the fact that the rope was old, defective and unsafe. The defect was to a large extent a latent one, and therefore it was the positive duty of the master to inspect for such defects, which must be continually performed. Ogan v. Railroad, 142 Mo.App. 251; Labatt on Master and Servant, sec. 159; Gutridge v. Mo. Pac., 105 Mo. 528; Baker v. Railroad, 95 Penn. St. 211; Tatem v. Railroad, 96 Mo.App. 454; Younge v. Frisco, 133 Mo.App. 159. (3) The duty to inspect and to make ordinary mechanical tests at reasonable intervals is an affirmative and a continuous duty. It is not enough to say that having furnished suitable and proper machinery and appliance, the master can thereafter remain passive, so long as they work well and seem safe. The duty of inspection is affirmative and must be continually fulfilled and positively performed. Anything short of this would not be ordinary care." Ogden v. Railroad, 142 Mo.App. 252. (4) The law does not permit the appellate court to try appellant's case on a different theory from that upon which it was submitted and tried in the lower court. Masterson v. Transit Co., 204 Mo. 507; Chandler v. Gloyd, 217 Mo. 416; O'Keefe v. Railroad, 124 Mo.App. 619; Cary v. Car Co., 125 Mo.App. 193; Nicket v. Railroad, 135 Mo.App. 661; Mitchell v. Railroad, 125 Mo.App. 1. (5) The failure to test and inspect the rope made the question of negligence one for the jury. Covey v. Railroad, 86 Mo. 635; Denker v. Milling Co., 135 Mo.App. 340. (6) The master's negligence, if proven or conceded, eliminates the question of assumption of risk. Holman v. Iron Co., 152 Mo.App. 685; Wiley v. Gas. Co., 132 Mo.App. 380; Warren v. Railroad, 113 Mo.App. 498; Tinkle v. Frisco, 212 Mo. 468; Strickland v. Woolworth, 143 Mo.App. 528; George v. Frisco, 225 Mo. 364; Younge v. Frisco, 133 Mo.App. 141. (7) When plaintiff showed that other roads inspected their ropes and tools in the bridge departments, this is additional evidence and a circumstance to show that the Frisco was negligent, when it was failing to do what other roads were doing. Robinson v. Frisco, 133 Mo.App. 120; Beard v. Car Company, 72 Mo.App. 583; Monahan v. Coal Co., 58 Mo.App. 74. (8) Where the master's foreman is present on the ground and directing the movements, then the servant's duty is to obey the master; and he has a right to rely upon the superior knowledge of the foreman that the tools and machinery and place to work are reasonably safe, and if hurt so doing can recover. Bloomfield v. Wooster Co., 118 Mo.App. 259; Hall v. Wabash, ___ Mo.App. ___, 145 S.W. 1170. (9) And if servant obeyed the master he is not chargeable with contributory negligence. Reeder v. Railroad, 129 Mo.App. 116, 117. (10) The use of the word "about" in the petition gives a margin for a moderate excess in or diminution of, the quantity of damages, and negatives the idea that exact precision is intended." 1 Cyc. 197; Reuter v. Sala, 4 C. P. D. 239; Cutts v. King, 5 Me. 482; Purinton v. Sedgley, 4 Me. 283; Bank v. Assurance Co., 106 Mo.App. 114; Robinson v. Ins. Co., 105 Mo.App. 567; Strauss v. Transit Co., 102 Mo.App. 644, 649. (11) Instruction No. 2 was right and harmless, and the defendant failing to ask an instruction specifically limiting the amount of the recovery, this court cannot and will not interfere and help appellant out of the difficulty, if any. Geissman v. Electric Co., 173 Mo. 679; Gamache v. Tin Foil Co., 116 Mo.App. 601; Taylor v. Iron Co., 133 Mo. 364; Ogden v. Railroad, 142 Mo.App. 254.
Farrington, J., not sitting.
--The plaintiff sues for personal injuries occasioned by falling from one of defendant's flat cars while he was assisting in loading some bridge timbers on the same. He was one of a crew engaged in building and repairing bridges along the defendant railroad. The crew was supplied with cars, tools, ropes and other equipment and moved from place to place as the work demanded. On this particular occasion the crew were preparing to move to another place and plaintiff and several other workmen were directed by the foreman to load some rather large and heavy bridge timbers, about thirty-two feet long, upon a flat car, preparatory to moving the same. These men were under the immediate and direct control of a boss or foreman who directed the work. The bridge timbers were loaded on the flat car by means of ropes and skids. Two or more ropes were used for this purpose and one end of each was fastened to a post on the far side of the car and, after being let down and placed under and around the heavy timbers, the men on top of the car, by pulling on the other end of the ropes, drew the timbers up on the skids to the top of the car. After the car had been partially loaded in this manner and while plaintiff and another man, standing on the timbers already loaded, were thus pulling on one of the ropes raising the bridge timbers to the top of the car, the rope broke causing them to fall backward off the car, resulting in the injuries for which plaintiff brings this action.
The plaintiff alleges that his spine was fractured, that he was injured internally and became a nervous wreck. The jury awarded plaintiff five thousand dollars for these injuries, which verdict was approved by the trial court and judgment entered accordingly.
Three assignments of error are made and relied on by defendant in this court: (1) The instruction given for plaintiff on the measure of damages; (2) the refusal to sustain the demurrer to the evidence; (3) that the verdict is excessive.
The instruction on the measure of damages is assailed because of not following the petition in limiting the amount of damages to be allowed for loss of time and earnings. On this point the petition alleges: "That prior to said injuries plaintiff was an ablebodied man, strong and vigorous and healthy; that he was earning about $ 700 per annum, and was in line of promotion for higher wages; that all of said earnings had been lost to plaintiff and on account of the permanent nature of said injuries plaintiff will be a cripple the balance of his life and will lose all of his earnings in the future, as his earning capacity has been totally destroyed." The instruction complained of, after specifying other elements of damages to be considered by the jury, says: "You should further take into consideration all loss of wages, if any, which you may find from the evidence that plaintiff has already sustained by reason of such injuries, if any, and you should take into account all loss of earnings, if any, that you may find from the evidence plaintiff will sustain in the future as a direct result of said injuries, if any."
We think this instruction is not erroneous under the pleadings and facts in this case. It will be conceded, we think, that where the petition does not limit the loss of time to a definite amount, then the instructions need not do so, where the petition states generally that the plaintiff...
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