Coble v. St. Louis-San Francisco Ry. Co.

• Decision Date: 21 May 1931
• Docket Number: No. 29381.,29381.
• Citation: 38 S.W.2d 1031
• Parties: COBLE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

38 S.W.2d 1031

COBLE v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 29381.

Supreme Court of Missouri, Division No. 1.

May 21, 1931.

Appeal from Circuit Court, Barry County; Charles L. Henson, Judge.

Action by James Coble against the St. Louis-San Francisco Railway Company. From an order setting aside a nonsuit, defendant appeals.

Reversed and remanded, with directions.

E. T. Miller, of St. Louis, and Mann, Mann & Miller, of Springfield, for appellant.

D. H. Kemp, of Cassville, for respondent.

STURGIS, C.

The plaintiff brought this suit to recover $20,000 for alleged personal injuries received while unloading railroad ties from a box car of the defendant. The court heard plaintiff's evidence and then sustained a demurrer thereto and was about to direct the jury to return a verdict for defendant. To avoid this the plaintiff took an involuntary nonsuit with leave to file a motion to set same aside, and thereupon plaintiff filed such motion, and the court sustained this motion and granted plaintiff a new trial. The defendant was granted and has perfected its appeal from this order.

The court heard no evidence except that of plaintiff, and therefore his evidence and all reasonable inferences and deductions therefrom are to be taken as true. From his evidence we learn that plaintiff was a section hand in defendant's employ at the time of his claimed injury, and that defendant was operating an interstate railroad and engaged in interstate commerce. At the time of his injury plaintiff was one of a section crew of five men engaged in keeping the defendant's tracks and roadbed in repair. On the particular day of the accident in question, plaintiff and the other members of the section gang, under their foreman, were unloading a box car of railroad ties on defendant's right of way. The car was set or "spotted" for that purpose, and three men, plaintiff, M. E. Huston, and Jim Fielding, as fellow servants, were given the task of unloading the ties from this car. The car stood on the track north and south, and the ties were unloaded through the west door, being carried to such door and dumped out of the door on the ground. The ties were 7 to 9 inches face and 7 inches thick, 8 feet long, and weighed about 250 to 300 pounds. It took two men to handle and unload a tie. They had been loaded in the car lengthwise with the car, two tiers or piles of ties in each end of the car, with a vacant space between the doors in the middle of the car. The ties were originally piled about as high as a man's head, two piles in the north end and two in the south end of the car. These men were unloading the ties in the north half of the car and were working on the pile or tier of ties next to the car doors. The three men were experienced in this kind of work, and, while they were under the general direction of a section foreman or boss, they were left without immediate supervision to do the work in their own or customary way, under certain general rules applicable to this kind of work.

These three men were working inside this car unloading the ties by carrying them to the west door in the middle of the car, one at a time, and with a man at each end of the tie, and pitching or throwing the tie out of the door to the ground. For their own convenience, they first unloaded the ties near the middle of the stack or pile so as to get down to or near the floor and leaving the ties piled up on either side against the sides of the car.

From this point on it is difficult to ascertain from the pleadings or evidence just how and why plaintiff was injured. The petition alleges that: "After plaintiff and other co-workers and employees had partly unloaded said car of ties, and while plaintiff was using all due care on his part for his own safety, and while in the act of taking hold of one end of a tie in the stack of ties to raise it up from the stack or pile of ties and get in a position to assist one M. E. Huston (one of the co-workers and employees of defendant) to carry the same to the car door and throw it out, one Jim Fielding, another co-worker and employee of defendant, negligently and carelessly took a leaning position against said stack of ties in said car, and said M. E. Huston, servant and employee of defendant, negligently and carelessly took hold of the other end of the tie plaintiff had hold of, and, without any warning to plaintiff, negligently and carelessly and in violation of the `Safety Rules' made and promulgated by defendant for its employees in track department work, lifted his end of said tie up from the stack of ties (the said Jim Fielding was leaning against) before plaintiff was in a position and ready to lift and raise his end of the said tie; and on account of said negligence and carelessness of said M. E. Huston and Jim Fielding, servants and employees of defendant, as aforesaid, said stack of ties began to drop and roll from said stack of ties in said car upon and against plaintiff, and on account and by reason of said negligence and carelessness as aforesaid plaintiff was thereby suddenly and unexpectedly precipitated backward and compelled to support the weight of said heavy tie; and as a direct result the muscles, ligaments and tendons of plaintiff, etc., were permanently wrenched and torn from their position," etc.

About all that can be gathered from these allegations is that, while plaintiff was in the act of helping pick up a tie, Jim Fielding, a fellow servant of plaintiff, "negligently and carelessly took a leaning position against said stack of ties," and that M. E. Huston, the other co-worker, negligently and carelessly took hold of and, without warning, lifted up his end of the tie before plaintiff was in a position and ready to lift and raise his end, and that, coincident with these two acts denominated as negligent, the leaning against said stack of ties by Fielding and the raising of his end of the tie by Huston before plaintiff could raise his end, a certain tie or ties rolled and dropped and plaintiff was precipitated backward and compelled to support the weight of the heavy tie. It will be noted that it is not alleged that Fielding leaned against the pile of ties in such manner or with such force that he pushed or caused the tie or any of them to drop or roll from the stack; nor that the act of Huston, in raising his end before plaintiff raised his, caused the tie or any of them to drop and roll from the pile. Nor is it alleged that the rolling tie or ties struck or touched the plaintiff or "precipitated him backward," but only that plaintiff was precipitated backward and compelled to bear the weight of the tie he was helping to lift by reason of the negligence and carelessness of these two fellow workers "as aforesaid." It is then alleged that his being compelled to support the heavy tie caused plaintiff's muscles, tendons, etc., to be wrenched, torn, etc. Certainly these allegations are very indefinite and do not state any causal connection between the acts of the two fellow servants, characterized as negligent, and the plaintiff's alleged injuries. To allege that the fellow servant of plaintiff performed certain acts which are denominated as careless and negligent, and that this was followed by an injury to plaintiff, without showing, or at least asserting, that the one caused the other, does not state, unless by a mere inference, a cause of action. The negligent acts are connected with the injury only in point of time.

But if we grant that by inference it was intended to state that the leaning against the pile of ties by the one fellow servant and the lifting up of his end of the tie which plaintiff and the other fellow servant were about to carry to the door before plaintiff had time to lift his end did cause a tie or ties to roll from the pile, which, in turn, caused plaintiff to step backward in a twist, straining his muscles and tendons, the question remains to be determined whether the evidence supplied this inference and established the causal connection between the alleged negligent acts and the alleged injury.

While each party cites a number of authorities to sustain their respective positions, each, in turn, concedes the correctness of the rules of law announced and contended for by the other. Thus defendant contends, and cites many authorities to the effect, that it is not sufficient to prove negligent acts of the defendant and an injury to plaintiff, but that there must also be shown a causal connection between the negligence and the injury— that the burden is on plaintiff to prove the causal connection, and that this cannot be left to mere speculation or conjecture—that it is not sufficient to prove a negligent act by one party and an injury to the other, but it must be shown that the negligent act caused the injury.

To all this the plaintiff replies that "we find no fault with the authorities cited in appellant's brief, only they furnish no assistance to this court on the question decisive of the case," and then proceeds to cite a list of authorities to the effect that, in passing on demurrers to the evidence, the evidence of plaintiff must be taken as true, especially so when that is the only evidence in the case; that plaintiff must be given the benefit of all reasonable inferences of fact which the jury may legitimately make; that, if there is any substantial evidence supporting plaintiff's cause of action, the case must go to the jury. To these propositions of law defendant agrees, but says that they furnish no assistance to the court in determining the question decisive of the case. We can, therefore, agree with both parties as to the general propositions of law contended for, and will have to apply same as best we can to the evidence in this particular case.

Applying the rules of law invoked by plaintiff, we will agree that there is some evidence showing that the act of the fellow servant Huston in lifting up his end of the tie before plaintiff was ready to lift his end...