Clippard v. St. Louis Transit Co.

• Decision Date: 28 March 1907
• Citation: 101 S.W. 44,202 Mo. 432
• Parties: CLIPPARD v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

101 S.W. 44

202 Mo. 432

CLIPPARD v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1907.

1. APPEAL—RESERVATION OF GROUNDS OF REVIEW —MOTION IN ARREST OF JUDGMENT.

Where there is a motion in arrest of judgment which questions the sufficiency of the petition, the petition will be considered on appeal, though after a demurrer to the petition was overruled defendant answered.

2. MASTER AND SERVANT—INJURIES TO SERVANT —ACTIONS—COMPLAINT—ALLEGATION OF NEGLIGENCE.

A petition, in an action for injuries to an employé, while on a work car of defendant street railway company, which described the defective condition of the car, and averred that the defendant was negligent in furnishing the car for the work in the defective condition, is sufficient, without alleging that defendant knew, or could have known by the exercise of reasonable diligence, of the defects complained of.

3. SAME.

In an action for injuries to an employé, alleged to be due to the defective condition of a car, an averment of the petition that the bearings over the truck did not slide or follow the turn of the car, but were rigid, and thus would cause the car to become derailed, was sufficiently

definite to fully apprise the defendant of the issue to be met.

4. SAME—INSTRUCTION.

Where injuries were averred to be due to the defective condition of a car, and the evidence showed that the defect was in the bearings of the car alone, it was not error to instruct that if the jury found that the car and its appliances and bearings were defective, and that thereby it was caused to leave the track and injure the plaintiff, then he might recover.

5. APPEAL—ESTOPPEL TO ALLEGE ERROR—INSTRUCTIONS.

Defendant cannot complain of expressions in instructions given, when instructions given at its request contain in effect the same expressions.

6. MASTER AND SERVANT—INJURIES TO SERVANT —ACTIONS—ASSUMPTION OF RISK.

The fact that an employé knew of the defective condition of a car, and consented to ride on it, will not of itself preclude a recovery for injuries received in consequence of such defect, unless it was so glaring as to threaten immediate injury, or such that a person of ordinary prudence would not have used it to ride upon.

7. SAME—APPLIANCES—DUTY OF MASTER TO FURNISH.

A master is not an insurer of the safety of his servants, and, where a car had been tested and inspected before it was used, the master was liable only for failure to exercise reasonable care to make the car safe, and was not bound to know of hidden defects in the car not discoverable by the exercise of reasonable care.

8. TRIAL — REFUSAL OF INSTRUCTION — INSTRUCTIONS ALREADY GIVEN.

In an action for injuries to a servant, alleged to be due to the defective condition of a car, it was error to refuse an instruction that defendant was not an insurer of plaintiff's safety, but was obliged only to exercise reasonable care to provide a reasonably safe car, and was not bound to know of hidden defects not discoverable by the exercise of reasonable care, on the ground that it was covered by a given instruction that if the car was reasonably safe on the morning of the day of plaintiff's injury, and became out of repair later, so as to cause the accident, plaintiff could not recover unless defendant knew, or by the exercise of reasonable care might have known, of its defects.

Appeal from St. Louis Circuit Court;. Jas. R. Kinealy, Judge.

Action by Leon Clippard against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Geo. W. Easley, Boyle & Priest, and Geo. T. Priest, for appellant. E. D. Hayes and A. R. Taylor, for respondent.

GRAVES, J.

Action for personal injuries. Verdict and judgment went for plaintiff in the sum of $6,235, and defendant appeals. At the institution of the suit plaintiff was a minor, and brought suit through L. J. Grimsley, his curator, but before trial he reached his majority, and further prosecuted suit in his own name.

By petition it is charged that defendant is a corporation, and as such used and operated a street railway and a certain car and apliances in the petition mentioned; that on October 29, 1901, plaintiff was in the service of defendant as a laborer in repairing its tracks; that he was on one of defendant's cars going west on Chouteau avenue, when said car left the track, and plaintiff's left leg and foot were crushed between said car and an upright pole standing some 16 or 18 inches from the track, and plaintiff thereby permanently crippled and disabled. The car was used for the purpose of transporting the workmen and material from place to place on defendant's railway. The alleged negligence of defendant is stated in this language: "And plaintiff avers that said car was so caused to leave said track and injure the plaintiff by reason of the defective and insecure condition of said car and appliances; that said car and its appliances and bearings were out of order and defective, and such condition of said car would cause it to leave the track; that the bearings over the truck did not slide or follow the turn of the car, but were rigid, and thus would cause the car to become derailed. And plaintiff avers that said defective condition of said car and its appliances was the direct cause of said car's leaving the track and injuring the plaintiff as aforesaid. And the plaintiff avers that the defendant was negligent in furnishing said car in such defective condition."

The defendant first demurred, but such demurrer was overruled. Defendant then filed motion to make petition more specific and definite, which was likewise overruled. Defendant then answered, first by a general denial, and further by special plea of contributory negligence, couched in this language: "Defendant for further answer to plaintiff's petition avers that by its rules, regulations, and orders adopted, promulgated, and given by defendant to plaintiff and other employés of defendant, for their safety and protection, such employés and servants of defendant were forbidden to ride on defendant's cars with their legs and feet swinging over and from the sides of said cars, and that whatever injuries plaintiff may have sustained were caused by his own negligence in riding on one of defendant's cars with his feet and legs outside the body or side of said car in violation of defendant's said rules, orders, and regulations. And having fully answered, defendant prays to be hence dismissed with its costs." Reply was a general denial.

The errors assigned are: (1) The overruling of the demurrer; (2) the overruling of the motion to make petition more specific and definite; (3) the overruling of the demurrer to plaintiff's evidence and to all the evidence upon the close of the case; (4) the giving of instructions Nos. 1, 2, 3, 4, and 5 for plaintiff; (5) the refusal to give instructions Nos. A-1, A-2, A-3, A-4, and A-5, asked for defendant; the admission of incompetent evidence over the objection of defendant. Objection was made to the introduction of any evidence under the petition, for the reason that the petition failed to state facts sufficient to constitute a cause of action, which objection was overruled and exception saved. The same point is preserved by motion in arrest of judgment. Points urged will be considered in connection with a further statement of the testimony as introduced and applicable to the several points discussed in the course of the opinion.

1. The first point made by defendant is that there was error upon the part of the trial court in overruling the demurrer to the petition. The defendant answered, but the answer is no way aids the petition in respect to the alleged defect now insisted upon by defendant. Ordinarily, where a demurrer is overruled, and the defendant pleads by way of answer rather than stand upon the demurrer, we do not consider the demurrer, and would not consider the point here raised, but for the fact there is a motion in arrest of judgment which questions the sufficiency of the petition. So that in this case we consider the sufficiency of the petition upon the challenge thereto raised by the motion in arrest of judgment rather than upon the demurrer. Defendant challenges the sufficiency of the petition in brief in this language: "The petition contains no averment that the defendant had any knowledge of the defects complained of, or could have known of the defects by reasonable diligence, or any averments which are equivalent to the same." The petition does not contain such specific allegations. The petition does contain this allegation: "And the plaintiff avers that the defendant was negligent in furnishing said car for said work in said defective condition." The defective condition had been previously described in the petition. The petition is not well worded for a case of this character, to say the least of it. Defendant admits the allegations of the petition to be sufficient, if this case was a case where "the servant brings his action against the master because the master furnished him with the tool or instrument which is defective, inherently defective and unfit for the purpose for which it is intended," but urges that the rule does not hold good, and the petition would be bad, in cases "where a servant grounds his petition upon injuries received during the use of appliances and instruments furnished him by the master which were originally perfect and free from defect, and suited to the use or purpose for which they were intended, but having become unsuited through use and ordinary wear and tear, and thus are liable to injure the servant."

In cases of this character, defendant urges, "the petition must contain the averment or its equivalent that the master could have known of the defect through the exercise of ordinary care, or being informed of it has failed to rectify it." The evidence shows that plaintiff had used this particular car for about six weeks, and that...