Briscoe v. Chicago, B. & Q. R. Co.

• Decision Date: 06 April 1908
• Court: Missouri Court of Appeals
• Parties: BRISCOE v. CHICAGO, B. & Q. R. CO.

109 S.W. 93

130 Mo. App. 513

BRISCOE v. CHICAGO, B. & Q. R. CO.

Kansas City Court of Appeals. Missouri.

April 6, 1908.

1. MASTER AND SERVANT — INJURIES TO SERVANT.

Evidence held sufficient to show that the negligence of a fellow servant in the discharge of his duties was the direct cause of the injury to plaintiff, a railroad employé.

2. SAME — DUTY OF FELLOW SERVANT.

The act of the truckman in assisting plaintiff to unload the iron was not a mere voluntary act, but was within the scope of the truckman's employment, for whose negligence the master was therefore liable under Rev. St. 1899, § 2873 (Ann. St. 1906, p. 1655), authorizing a servant to recover for injuries caused by the negligence of a fellow servant.

3. PLEADING — COMPLAINT — OBJECTIONS AFTER VERDICT.

Where no demurrer was interposed to a petition for injuries to a servant by the negligence of a fellow servant for failure to allege that the latter was acting within the scope of his employment at the time of the injury, but that he was so acting was fairly inferable from the other facts pleaded and was sufficiently shown by the evidence, the petition was sufficient after verdict to sustain a judgment for plaintiff.

4. MASTER AND SERVANT — INJURIES TO SERVANT — ASSUMED RISK.

Under Rev. St. 1899, § 2873 (Ann. St. 1906, p. 1655), making a master liable for injuries to a servant caused by the negligence of a fellow servant, the injured servant does not assume the risks caused by the negligence of the fellow servant under the rule that the servant does not assume the risk produced by the master's negligence.

5. SAME — CONTRIBUTORY NEGLIGENCE.

Where a servant was injured while unloading a truck load of bundles of iron, whether he was negligent in not unloading the bundles separately was for the jury.

Appeal from Circuit Court, Jackson County.

Action by James Briscoe against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Warner, Dean, McLeod & Timmonds, for appellant. John M. Cleary, for respondent.

JOHNSON, J.

Action by a servant against his master, a railroad company, to recover damages for personal injuries alleged to have been caused by the negligence of a fellow servant. Verdict and judgment were for plaintiff in the sum of $2,000, and defendant appealed.

The questions presented by defendant in its argument that the judgment should be reversed are comprised in two propositions: First, that the petition does not state a cause of action; second, that the court committed error in overruling defendant's demurrer to the evidence.

Pertinent facts disclosed by the evidence most favorable to plaintiff are as follows: At the time of the injury, which occurred in the afternoon of October 7, 1905, plaintiff was in the service of defendant, and was engaged at its freight depot in Kansas City in loading and unloading freight cars. He had been employed as a truckman, but on the day in question was performing the duties of a "stowman" in the loading of a car which had been switched into the depot for that purpose. His place was in the car, and his work was to unload freight from trucks brought to him by the truckman, and to store it safely and compactly for transportation. Owing to the facts that the body of the car was separated from the floor of the building by a short space and the floor of the car was a few inches higher than the floor of the building, a bridge composed of an iron sheet was used at the entrance of the car. A truckman brought a truck loaded with six or seven bundles of corrugated sheet iron for roofing, and, on account of the great weight of the load, was assisted by plaintiff in running the truck over the bridge into the car. Each bundle was bound in the middle by a metal belt and contained a number of sheets, each of which was about eight feet long and three feet wide. The thickness of all the bundles, when piled together as they were on the truck, was seven or eight inches, and their combined weight was approximately 800 pounds. The bundles were not bound together, and might have been unloaded separately. Plaintiff and the truckman, each holding a handle, tipped the truck to one side when they reached the proper place in the car, slid the load sidewise to the floor, raised it on edge, and leaned the top against the side of the car. Plaintiff stated that, when the bundles were placed in the position described, they were separated from the wall at one end by a space not over three or four inches. The car stood north and south. The load stood against the east wall, and rested on the floor on one of its long edges. Plaintiff was at the south end and the truckman at the opposite end of the load, and they co-operated to raise it to a perpendicular position and lean its top against the wall. Observing that the bottom of the bundles was too close to the wall to stand on edge, and that, when the support was withdrawn, they would fall over towards the west, plaintiff, placing his left hand at the top, employed his right hand to pull the bottom further away from the wall. While thus engaged, the truckman, who had been holding the bundles in position at their north end, suddenly let go without warning plaintiff, whose strength proved inadequate to the task of supporting the weight thus thrown on him, and the load fell over on him, breaking one of his legs. Describing the situation immediately preceding the injury, plaintiff testified, in part, as follows: "Q. At the time that you were endeavoring to get your end out from the wall, were you facing O'Neill [the truckman], or did you have your back to him? A. I was kind of facing the side of the car, but facing, I believe, a little sideways like. Q. Did you see him let go of this iron? A. I don't think I did see him just when he let go of it exactly. Q. You don't think you saw him when he let go? A. No, sir. Q. When you last saw him, what was he doing — I mean just before the iron fell on you? A. He jumped back, I think, to get out of the way of the iron or something. Q. Did you see him have hold of the iron at all? A. I did,...