Crawford v. Kansas City Stockyards Co.

• Decision Date: 25 November 1908
• Citation: 215 Mo. 394,114 S.W. 1057
• Parties: CRAWFORD v. KANSAS CITY STOCKYARDS CO.
• Court: Missouri Supreme Court

114 S.W. 1057

215 Mo. 394

CRAWFORD v. KANSAS CITY STOCKYARDS CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

Rehearing Denied December 23, 1908.

1. APPEAL AND ERROR (§ 855)—REVIEW— GROUNDS FOR SUSTAINING DECISION NOT CONSIDERED.

Though grounds specified in an order granting a new trial may not justify the order, yet if the record shows error during the trial not so specified that will justify it, the order will be sustained, the burden being on the party obtaining the new trial to show the error on appeal.

2. NEW TRIAL (§ 163)—PROCEEDINGS TO PROCURE —ORDER GRANTING NEW TRIAL—SPECIFICATION OF GROUNDS — CONTRADICTORY GROUNDS.

Grounds, specified in an order granting a new trial, that a demurrer to the evidence should have been sustained, and that the verdict was not supported by the evidence, are contradictory, if the second ground meant that the evidence was not sufficient in weight and credibility to support the verdict, since a demurrer to the evidence is sustained only where there is no evidence tending to support the action.

3. APPEAL AND ERROR (§ 979)—REVIEW—DISCRETION OF COURT—GRANTING NEW TRIAL — WEIGHT OF EVIDENCE.

Granting a new trial because the weight of evidence is against the verdict is in the discretion of the court, and where a case fairly falls within that discretion it will not be reviewed.

4. APPEAL AND ERROR (§ 973)—REVIEW—DECISION ON DEMURRER TO EVIDENCE.

A decision of the trial court on demurrer to the evidence that there was no evidence tending to prove plaintiff's case would be reviewable on appeal, there being no discretion involved, inasmuch as the court had weighed no evidence.

5. APPEAL AND ERROR (§ 854)—REVIEW—ORDER GRANTING NEW TRIAL—ASSIGNMENT OF REASONS.

The assigning of a reason for granting a new trial is not a mere form, and a party should not be deprived of a review of the ruling by the use of an incorrect form of expression.

6. APPEAL AND ERROR (§ 854)—REVIEW—ORDER GRANTING NEW TRIAL.

Where the court in an order granting a new trial stated as grounds therefor that a demurrer to the evidence should have been sustained, and that the verdict was not supported by the evidence, the first ground being in effect a statement that there was no evidence to support the verdict the second ground will not be considered as a statement that the court had weighed the evidence and found its weight against the verdict, so as to preclude its review.

7. TRIAL (§ 156)—DEMURRER TO EVIDENCE— DEFENDANT'S EVIDENCE TO BE CONSIDERED.

If defendant's evidence aids plaintiff's case, it may be considered in determining a demurrer to the evidence.

8. NEGLIGENCE (§ 134)—ACTS CONSTITUTING —CONDITION OF PREMISES—EVIDENCE.

Evidence held to show that leaving a stock pen gate open in close proximity to passing stock cars, upon the sides of which those in charge might be hanging, was dangerous, unnecessary and unusual.

9. NEGLIGENCE (§ 48)—LIABILITY—ANTICIPATION OF RESULTING INJURY.

Though leaving the gate of a stock pen open in close proximity to passing stock cars was negligence, the owner would not be liable for injuries therefrom to a stockman on the side of a passing car unless it had cause to anticipate that somebody was liable to be on the side of a passing car.

10. CUSTOMS AND USAGES (§ 20)—CONDITION OF STRUCTURES — CUSTOMARY USE BY OTHERS—PRESUMPTIONS.

A stockyards company is presumed to know its own business and who are habitually involved in its operation, and if it was a custom for stockmen, while caring for cars of stock on the premises to so enter and leave cars that their bodies extended beyond the sides thereof, the company was presumed to know the custom, and was liable for leaving a stock pen gate open so that it struck and pushed a stockman off a passing car, though it did not in fact know of the custom.

11. NEGLIGENCE (§ 119) — PLEADING — VARIANCE — MATERIALITY — STATUTORY PROVISIONS.

In an action for injuries from a stock pen gate left open in close proximity to passing stock cars, there was no material variance between an allegation that plaintiff was coming down the side of the car at the bottom of the ladder thereof, and proof that the ladder was on the end of the car, and that plaintiff, when injured, had come down the ladder and had his hand extended around to the hook on the side of the car, and his foot extended around and resting on the sill, the only negligence attributed to defendant being that of leaving the gate open, Rev. St. 1899, § 655 (Ann. St. 1906, p. 671), providing that no variance between pleading and proof shall be material unless it misleads the adverse party to his prejudice on the merits.

12. NEGLIGENCE (§ 134)—LIABILITY—ANTICIPATION OF RESULTING INJURY—EVIDENCE.

Evidence held to show that a stockyards company had reason to anticipate that stock attendants on cars passing stock pens would be liable to be on the sides of the cars, and hence that it was negligent in failing to keep closed a stock pen gate which protruded in close proximity to passing cars.

13. NEGLIGENCE (§ 70)—CONTRIBUTORY NEGLIGENCE — FAILURE TO LOOK FOR DANGER NOT TO BE ANTICIPATED.

Ordinarily one is not required to look for danger when he has no cause to anticipate it,

or when it does not exist except by the negligence of another.

14. NEGLIGENCE (§ 124)—ACTIONS—ADMISSIBILITY—EVIDENCE.

In an action by a stock attendant against a stockyards company for injury from an open stock pen gate while riding on the outside of a car, a contract between the attendant's employer and the railroad company, to which the attendant was not a party and in which he had no interest, providing that the attendant should ride in the caboose, and if he rode on a freight car he assumed the risk, was inadmissible on the question of the stockyards company's liability, especially where the provision was habitually disregarded through necessity, with the knowledge and consent of trainmen.

15. NEGLIGENCE (§ 136) — QUESTION FOR JURY.

In an action by a stock attendant against a stockyards company for injuries from an open stock pen gate received while riding on the side of a passing train, whether plaintiff was negligent held for the jury under the evidence.

16. NEGLIGENCE (§ 124)—ACTIONS—ADMISSIBILITY OF EVIDENCE.

In an action by a stock attendant against a stockyards company for injuries sustained while riding on the side of a car, where it appeared that cattle coming to the yards were usually in the care of an attendant who accompanied them on the journey until they were delivered to the stockyards company, the question whether plaintiff was, when injured, acting in the line of his well-known duty and in the ordinary way, was in the case, and on that question evidence was admissible showing a custom of stock attendants to go over the train and into cars to attend cattle while the train is in motion, it being competent to show the duties of one in a particular employment by showing what others in like service usually do.

17. EVIDENCE (§ 155)—COMPETENCY—ADMISSIBILITY.

In an injury action by a stock attendant against a stockyards company, where a contract between plaintiff's employer and the railroad company requiring plaintiff to ride in the caboose, and providing that he assumed the risk of riding on the freight cars, was erroneously admitted, evidence of plaintiff was admissible to show that the provision as to riding in the caboose was habitually disregarded with the knowledge and consent of the conductors, so as to counteract the effect on the jury of the erroneous evidence.

18. NEGLIGENCE (§ 121)—ACTIONS—BURDEN OF PROOF.

Where plaintiff riding on the side of a car was injured by being struck by defendant's open stock pen gate in its stockyards, and there was no evidence as to who left the gate open, the inference was that defendant did so, and the burden of proof was not on plaintiff to show who opened it.

19. NEGLIGENCE (§ 139)—ACTIONS—INSTRUCTIONS—CUSTOM.

In an action by a stock attendant against a stockyards company for injuries received while riding on the side of a car, where the custom of disregarding a shipping contract requiring stock attendants to ride in the caboose and a custom of stock attendants to climb in and out of cars in motion were in question, a charge that customs should not be considered in arriving at a verdict was properly refused.

20. TRIAL (§ 194)—INSTRUCTIONS—REQUESTS.

In an injury action where the only act of defendant complained of was its leaving a stock pen gate open, a requested charge declaring that it was not defendant's duty to keep it closed on occasions such as that upon which plaintiff was injured was in effect a demurrer to the evidence, and was properly refused, where the leaving of the gate open was negligence.

21. NEGLIGENCE (§ 141)—ACTIONS—INSTRUCTIONS.

In an action by a stock attendant against a stockyards company for injuries from being struck by an open stock pen gate while standing on the side of a passing car, a charge that if plaintiff could have seen the gate if he had looked, and did not look, he could not recover, was properly refused, since, if plaintiff had no reason to anticipate that the gate might be open, he was not negligent in failing to look.

22. NEGLIGENCE (§ 32)—CONDITION OF PREMISES — INJURY TO PERSONS TRANSACTING BUSINESS—IMPLIED INVITATION.

If a servant goes on another's premises to attend to his master's business without a special invitation of the other, the other's liability for injuries to the servant is not confined to injuries willfully inflicted.

23. NEGLIGENCE (§ 141) — ACTION—INSTRUCTIONS—MODIFICATION.

In an action by a person struck by a stock pen gate while riding on the side of a stock car, modifying a requested charge that if the jury believed from the evidence that in getting off the car plaintiff could have seen the gate, etc., so as to state that if by the exercise of ordinary care he could have seen the gate, etc., was not error.

Appeal from Circuit Court, Jackson County;...