Clift v. Railway Company
| Decision Date | 20 July 1928 |
| Docket Number | No. 27109.,27109. |
| Citation | 9 S.W.2d 972 |
| Parties | FRANK W. CLIFT v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Rosskopf, Judge.
AFFIRMED.
E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.
(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant should have been given. (a) No negligence was shown. The evidence did not establish that the way the tools were loaded on the motor car was not a reasonably safe way. Res ipsa loquitur does not apply, and negligence cannot be inferred from the mere fact that the claw bar slipped off the motor car. Negligence is an affirmative fact which must be proved. Nichols v. Railway (Mo. Sup.), 225 S.W. 679; Lopez v. Hines (Mo. Sup.), 254 S.W. 37; Hamilton v. Railway (Mo. Sup.), 300 S.W. 787; New Orleans Ry. v. Harris, 247 U.S. 371; Chicago Ry. v. Coogan, 271 U.S. 472; Patton v. Railroad, 179 U.S. 658; Payne v. Bucher, 270 Fed. 38; Bennett v. Terminal Co., 2 Fed. (2d) 913; Midland Valley Railroad Co. v. Fulgham, 181 Fed. 95. (b) But if it could be contended that there was substantial evidence tending to establish negligence in the way in which the claw bar was loaded on the motor car, then since the claw bar was in plain sight, and the entire situation and danger of the claw bar sliding off were so open and obvious that plaintiff would be presumed to know it, he assumed the risk as a matter of law and cannot recover. Jacobs v. Railway, 241 U.S. 229; Chesapeake Ry. v. Proffitt, 241 U.S. 462; Boldt v. Railroad, 245 U.S. 441; Maki v. Coal Co., 187 Fed. 393; Chicago Ry. Co. v. Shalstrom, 195 Fed. 725; Hoch v. Railway (Mo. Sup.), 287 S.W. 1051; Quigley v. Hines, 291 Mo. 23; Osborn v. Railway (Mo. Sup.), 1 S.W. (2d) 188, (2) The court erred in giving Instruction 1 on behalf of plaintiff. This instruction directs a verdict, but is not supported by substantial evidence of negligence, and ignores the defense of assumption of risk. Authorities Point 1 (a), supra; Brownlow v. Wollard, 66 Mo. App. 636; Clark v. Hammerle, 27 Mo. 55, 70; Bank v. Murdock, 62 Mo. 70; Fitzgerald v. Hayward, 50 Mo. 523. (3) It was error to give Instruction 2. It is confusing and misleading, and improperly declares that plaintiff was not required to perform the duty imposed on him by law to exercise ordinary care for his own safety. (4) Instruction 6 given on behalf of plaintiff is erroneous in that it fails to give proper effect to the standard prescribed by the Federal Employers' Liability Act for diminishing the damages. Seaboard Air Line v. Tilghman, 237 U.S. 499. (5) It was error to refuse defendant's requested withdrawal instructions, intended to withdraw from the consideration of the jury assignments of negligence which were without support in the evidence. Authorities under Point 1 (a), supra, (6) The verdict is grossly excessive, Parks v. Railways (Mo. Sup.), 235 S.W. 1069; Hulse v. Railway (Mo. Sup.), 214 S.W. 155, followed in Simon v. Mfg. Co., 298 Mo. 81; Young v. Lusk, 268 Mo. 625; Fisher v. Const. Co. (Mo. App.), 263 S.W. 1026.
Douglass & Inman for respondent.
Plaintiff's evidence established facts which made a question for the jury to determine whether or not defendant was guilty of negligence. Hook v. Railroad, 116 Kan. 556; Railroad v. Hall, 167 Ky. 819; Robie v. Railroad, 100 Atl. (Vt.) 925; Cabanaro v. Railroad, 197 Ill. App. 465. Also see Wells v. Davis, 303 Mo. 388, l.c. 415, line 3, bottom page, on question where an act is negligence. (2) Plaintiff's Instruction 1, which directed a verdict for the plaintiff if the facts stated in it were found to be true, was not erroneous, although it omitted the alleged defense of assumption of risk; (a) Because the answer pleads assumption of risks arising out of the contract of employment that were incident to the work, and not assumption of extraordinary risks arising from the master's negligence. Since assumption of risk is an affirmative defense that must be pleaded, then the plea must set out the facts which it claims constituted assumption of risks, which defendant failed to do, as assumption of risk arising from the master's negligence was not pleaded and therefore is not available as a defense. Halt v. Railroad, 279 S.W. 152. (b) But if assumption of risk had been properly pleaded, then the omission of plaintiff's instruction to mention this defense would not be reversible error, as defendant's Instruction 9 covered its theory of assumption of risk as a defense, and this cured any error in omitting this defense, as the instructions must be read as a whole. Stack v. Baking Co., 283 Mo. 423; State ex rel. Jenkins v. Trimble, 291 Mo. 227; Heigold v. Railways Co., 308 Mo. 142; Colburn v. Krenning, 220 S.W. 940; Rawie v. Railroad, 310 Mo. 96; Morrow v. Electric Co., 286 S.W. 116. (3) Instruction 2 properly declares the law, as it merely sets out facts which, if found by the jury to be true, established a situation where plaintiff had a right to assume that the tools were loaded according to the custom and practice in loading them, for, if these facts were found to be true, then the plaintiff in this case had a right to assume that the defendants, or its employees, would not imperil his safety by placing the claw bar on top of ropes above the edge of the tool box in a position where there was danger of it sliding off, but that they had placed the claw bar in the bottom of the tray, as was the custom and practice to do so, where it would not slide off. Johnson v. Brick Co., 276 Mo. 50. (4) Instruction 6 lays down the correct rule of law for determining the amount of damages under the Federal Employers' Liability Act, where it is found by the jury that both plaintiff and defendant were guilty of negligence contributing to cause the injury. Westover v. Wabash Ry. Co., 6 S.W. (2d) 843. (5) Instructions 1 and 2 were withdrawal instructions and were properly refused. The assignment of negligence mentioned in Number 1 was not submitted by plaintiff and, therefore, was abandoned. Number 2 sought a withdrawal of the assignment of negligence which was submitted to the jury and this should have been refused. (6) "The Federal Employers' Liability Act, under the laws of this State, requires the assumption of risk to be pleaded by the defendant." Halt v. Railroad, 279 S.W. 152. (7) The instructions correctly submitted the law of assumption of risk. Railroad v. Deatley, 241 U.S. 315; Railroad v. Proffitt, 241 U.S. 468. (8) The Federal Employers' Liability Act placed a coemployee's negligence, when it is the cause of the injury, in the same relation as that of the employer upon the matter of assumption of risk (also negligence and contributory negligence). Railroad v. Ward. 252 U.S. 18; Second Employers' Liability Cases, 223 U.S. 49; Railroad v. Carr. 238 U.S. 260. (9) The plaintiff had a right to assume that the defendant, or its employees, would not imperil his safety by placing the claw bar on top of ropes above the edge of the tool box in a position where there was danger of its sliding off, but would place the claw bar in the bottom of the tray, as was the custom and practice, where it would not slide off. Johnson v. Brick Co., 276 Mo. 50; also authorities under Point 8.
This is an action under the Federal Employers' Liability Act for damages for personal injuries sustained through the alleged negligence of defendant. Plaintiff, a carpenter and a member of a crew engaged in repairing a bridge on an interstate railroad, was being carried to his work on a motor car, furnished by defendant for that purpose, when he was knocked from the car by a claw bar, alleged to have been negligently loaded on the motor car. The jury awarded plaintiff the sum of $10,000, and defendant appealed from the judgment entered on the verdict.
The evidence most favorable to plaintiff warrants the finding that, on June 5, 1924, plaintiff was a member of a crew of workmen engaged in restoring and repairing a bridge on the main line of defendant, running from St. Louis, Missouri, to Texas. The bridge spanned a dry creek in the State of Oklahoma, known as Crum Creek. Plaintiff was a second-class bridge carpenter. The crew lived in bunk cars, which were moved from locality to locality as the work required. On the day mentioned the bunk cars were stationed at or near Stanley, Oklahoma, a distance of about four miles from the bridge on which the crew was then working. Defendant furnished a motor car, similar to the by-gone hand car, to carry the crew and the tools incident to the work from the bunk cars to the bridge and back again. The motor car was about six feet in length, and we assume approximately the same in width. Lengthwise through the center of the car, a raised platform was constructed, which was from a foot and a half to two feet in width, and from twenty to twenty-four inches in height, which was used as a seat by members of the crew while riding thereon. On both sides of this seat, also lengthwise of the motor car, were built trays in which tools were placed to be carried to the work. The trays were ten or twelve inches in width, extending the full length of the motor car, and were three to four inches in depth. The floor of the motor car constituted the base of the trays, while strips of wood formed the ends and sides.
On the morning of June 5, 1924, as the bridge crew was being carried to work on the motor car, plaintiff sat and rode at the left-hand corner thereof, with his right foot on the transverse rod at the front of the car and with his left foot on the side rail of the tray. The motor car was then running on the main track of the railroad. While the motor car was in motion, running from twelve to fifteen miles an hour on its way from the bunk cars to the work, about 8:35 A.M., a claw bar, which was being carried with the other tools in the tray on the left-hand side, slid forward...
To continue reading
Request your trial