Cash v. Sonken-Galamba Co.

• Decision Date: 27 March 1929
• Citation: 17 S.W.2d 927,322 Mo. 349
• Parties: J. W. Cash v. Sonken-Calamba Company, Appellant
• Court: Missouri Supreme Court

17 S.W.2d 927

322 Mo. 349

J. W. Cash v. Sonken-Calamba Company, Appellant

Supreme Court of Missouri

March 27, 1929

Rehearing Overruled May 25, 1929.

Transferred from Kansas City Court of Appeals.

Reversed.

Ringolsky Friedman, Boatright & Jacobs for appellant.

(1) Defendant did not owe plaintiff the duty of furnishing him a safe place to work. Neither did defendant owe plaintiff any duty with respect to the manner in which it kept its property or its premises. Plaintiff was not actually an invitee, but was about to become an invitee. In no event did defendant owe plaintiff at the time and place and under the circumstances detailed in evidence any greater duty than if he had actually become an invitee. If the law applicable to invitees is applied, plaintiff under his testimony cannot recover. (2) The law pertaining to invitees has been thoroughly considered and settled by this court. The proprietor is not an insurer of an invitee, nor is there any presumption of negligence merely upon a showing of any injury sustained by one rightfully upon the proprietor's premises. The true ground of liability is the proprietor's superior knowledge of the danger, and it is only when the danger is known to the owner and not known to the invitee that recovery is permitted. It is firmly established that there is no liability from dangers that are obvious, or as well known to the invitee as to the proprietor. If the invitee has equality of knowledge with the proprietor there is no liability. If what an invitee sees with his own eyes discloses to him all information the proprietor has, and the invitee nevertheless encounters the danger, the proprietor is not liable. Goetz v. Brick Co., 9 S.W.2d 606; Vogt v Wurmb, 300 S.W. 278; Mullen v. Mercantile Co., 260 S.W. 982; Main v. Lehman, 243 S.W. 91; Waldmann v. Skrainka Const. Co., 233 S.W. 242; Carr v. Sheehan, 30 N.Y.S. 753. (3) Where one knows of danger and voluntarily exposes himself to it, he cannot recover. Devitt v. Ry. Co., 50 Mo. 302; Schraeder v. Ry. Co., 108 Mo. 322; Adolff v. Baking Co., 100 Mo.App. 199; Mark v. Cooperage Co., 204 Mo. 242; Comer v. Taylor, 82 Mo. 341. (4) It is contributory negligence for an adult in full possession of his faculties and familiar on account of his occupation and experience for many years not to see and appreciate the danger, if any, connected with an instrumentality or a condition with which he is familiar. Gray v. Light & Power Co., 282 S.W. 490. (5) It is contributory negligence for one who has knowledge or notice of a violation of duty toward him to immediately conduct himself thereafter as though he had no such knowledge or information. He cannot rely on any presumption that the other party will fulfill his duty or obey the law. 1 Shearman & Redfield, Negligence (6 Ed.) 279, sec. 92; Van Bach v. Mo. Pac. Ry. Co., 171 Mo. 338; Clark v. Ry. Co., 127 Mo. 197; Lynch v. Street Ry. Co., 112 Mo. 420. (6) The rule that whether a danger is so obvious that a reasonably careful person would not encounter it is a question for the jury does not apply in cases where the true test of liability is superior knowledge of the defendant. This must necessarily be true in all cases where there is no duty of defendant to furnish a safe place or to keep the premises or property in any particular condition, otherwise equality of knowledge would not be a complete defense. Edmonson v. Hotel Statler Co., 306 Mo. 216; Cases cited under Point 3.

Gamble, Trusty & Pugh for respondent.

(1) Defendant is estopped from contending that the trial court erred in not instructing the jury that plaintiff was guilty of contributory negligence as a matter of law (a) by not asking any such instruction, and (b) by its Instruction I by which it treats contributory negligence as being for the jury. Ingram v. Coal Co., 5 S.W.2d 413; Von Eime v. Fuchs, 8 S.W.2d 824; Koppel v. Millinery Co., 296 S.W. 1055; Alexander v. Barnes & Co., 7 S.W.2d 370. (2) Aside from all questions of estoppel, still whether plaintiff was contributorily negligent in not seeing the wire before it caught him is an issue of fact for the jury. Also, appellant has waived this proposition as is shown in Point I. (3) In the St. Louis case (Gray), decedent, an experienced electrician by trade, in broad daylight approached the broken electric wire as it lay on the sidewalk sizzling, smoking and blazing, intending to cut it. Here, plaintiff knew nothing of the presence of the wire dragging along the rails until it caught and jerked him off his feet; hence, there is no conflict between the Gray case and this; and if there were, it should be resolved in favor of plaintiff-respondent. Gray v. Light Co. (Mo. App.), 282 S.W. 490. (4) The certification of this case from the Kansas City Court of Appeals to this court is in effect merely the granting of a rehearing at which all new contentions are barred. Honea v. Railroad Co., 245 Mo. 599; Bank v. Ogden, 188 S.W. 201; Boucher v. Railroad, 199 S.W. 742; Weber v. Lerech, 262 S.W. 457; Clark v. Quarry Co., 7 S.W.2d 716. (5) Defendant's brief in the Court of Appeals expressly renounced all claim that Cash was negligent in requesting defendant to move the crane without notifying it of the position of the coil; hence, it is now estopped from urging such failure as negligence. (6) Cash did not know the coil he saw on the truck of the crane in defendant's yard was loose and not a fixed part of its regular equipment, and defendant by its objections to our questions on that subject admitted that he did not. Defendant's failure to plead contributory negligence bars it as a jury question. (7) Under our Instruction I the jury found defendant's negligence consisted in depositing the wire on the track where it was caught and dragged by the box car. As to that negligence there was no equality of knowledge as between Cash and defendant, or any knowledge by or notice to Cash whatever. He was not legally bound to look out for the wire dragging behind the car. Ignorance of another's negligence excuses failure to guard against resulting dangers.

Walker, J. All concur except Frank, J., not sitting.

OPINION

WALKER

This is an action for damages for personal injuries due to the alleged negligence of the appellant, a corporation. Tried to a jury there was a verdict for $ 9450, which, after the overruling of a motion for rehearing, was reduced to $ 7000, and a judgment entered therefor, from which the defendant appealed to the Kansas City Court of Appeals. That court affirmed the judgment, but transferred the case to the Supreme Court on the ground that its opinion was in conflict with a ruling of the St. Louis Court of Appeals in the case of Gray v. Light & Power Co., 282 S.W. 490, in holding that the respondent, as a matter of law, was not guilty of contributory negligence.

The appellant's place of business is located in the State of Kansas adjacent to the Missouri state line and near what is known in Kansas City, Missouri, as the "West Bottoms." It there owns and operates a general junk business and a plant for the reclamation of metal, rags and paper.

The accident which resulted in respondent's injuries occurred on the afternoon of March 6, 1920. The sky was clear and the weather dry. Respondent, as switch foreman of the Missouri Pacific Railway Company, was engaged in delivering three cars loaded with junk over its cross track to the yard of the appellant. These cars, before delivery, were weighed by appellant's yard foreman. The respondent was near at hand at the time, and after the cars were weighed he directed appellant's foreman to move the flat car belonging to the appellant from track No. 7, to enable the loaded cars to be placed in its yard. This flat car had thereon an engine and a crane to facilitate the unloading of heavy material from cars in appellant's yard, delivered to it by railroad companies. The respondent, while standing near the scales during the weighing of the cars, says he saw a coil of wire on the journal box of the west side of the truck of appellant's flat car on track No. 7. He did not mention this fact to the appellant's yard foreman who was present. No person saw the wire on the journal box, except the respondent. With this knowledge he ordered the appellant's employees to move the flat car, on the journal box of which he says the coil of wire was resting, from track No. 7, that he might use that track in placing appellant's loaded cars. In so doing he knew, as the evidence discloses, that the switch engine with the loaded cars would pass over the track near where he was then standing and on which he received his injuries.

Respondent's injury happened, concisely stated, as follows: The engine and three loaded cars, in passing over the Missouri Pacific cross-over track, passed respondent, who was waiting for them. On the last car passing him, on the truck or brake rod of the same, there was attached a wire which was dragging between the rails of the track for a distance of fifteen or twenty feet from the car and still further back was unwinding from a coil. Respondent, without looking, as this car was dragging and unwrapping the coil of wire passed him, attempted to cross over the track and his foot caught in the wire and he was dragged thirty or forty feet until the train was stopped and he was released. Respondent testified that the coil of wire he saw on the journal box of the flat car ten minutes before he was hurt was not on the journal box when he was loosened from the wire. This is the only circumstance tending to show that the wire with which the respondent became entangled was the same as the one he saw on the journal box of the flat car.

The respondent's interpretation of the testimony, which was that adopted by the jury, but which is based upon an assumption...