Davidson v. St. Louis & S. F. Ry. Co.

• Decision Date: 25 November 1918
• Docket Number: No. 2213.,2213.
• Citation: 207 S.W. 277
• Court: Missouri Court of Appeals
• Parties: DAVIDSON v. ST. LOUIS & S. F. RY. CO.

207 S.W. 277

DAVIDSON v. ST. LOUIS & S. F. RY. CO.

No. 2213.

Springfield Court of Appeals. Missouri.

November 25, 1918.

On Motion for Rehearing, January 2, 1919.

Appeal from Circuit Court, Newton County; Charles L. Hanson, Judge.

Action by Ben F. Davidson against the St. Louis & San Francisco Railway Company. From a judgment for defendant, plaintiff appeals. Certified, on rehearing, to Supreme Court because of conflicting decisions.

F. P. Sizer and E. A. Gardner, both of Monett, for appellant.

W. F. Evans, of St. Louis, 0. L. Cravens, of Neosho, and Mann, Todd & Mann, of Springfield, for respondent.

STURGIS, P. J.

The plaintiff recovered judgment for personal injuries in the trial court, and that court, on defendant's motion, granted a new trial. From the order granting a new trial the plaintiff appeals, insisting that the defendant had a fair trial by an impartial jury, properly instructed on the law of the case, and that the disputed questions of fact are conclusively settled in plaintiff's favor.

The defendant's motion for new trial contains several alleged errors, and the trial court is to be commended for obeying the statutory direction in designating the ground on which the motion was sustained. The court granted the new trial on the one specific ground that the court had erred in refusing to give defendant's requested instruction in the nature of a demurrer to the evidence offered at the close of all the evidence in the case. The one question presented, therefore, is the sufficiency of the evidence to take the case to the jury.

The abstract of the record has very properly been so prepared as to present this question, omitting, or very much abridging, the evidence as to the nature and extent of plaintiff's injuries and other matters vital at the trial, but not so here. The evidence on this vital question is stated in narrative form, and the record, statement, and briefs of both parties are concise and pointed.

The plaintiff received his injuries while working as a "baggage trucker" at Monett, Mo., a divisional point on the defendant railroad, where much baggage is transferred from one train to another. Plaintiff had worked there in this capacity for three years, his duties in large part being to assist in unloading baggage from incoming trains onto trucks, and transferring and loading such baggage into outgoing trains. The particular baggage which plaintiff was thus assisting in transferring at the time of his injury was a large and heavy steel vault, containing a casket and corpse, which came in on a train from the west, from Kansas, and was to go out in about 10 minutes on a south-bound train, for Arkansas. It was unloaded from the Kansas train onto a truck, and wheeled a short distance to the door of the baggage car of the Arkansas train, and plaintiff claims he was injured while assisting in loading this steel vault from the truck into the baggage car.

While another ground of negligence is alleged in the petition, the sole ground of defendant's negligence, which was submitted to the jury, is that of the negligence of plaintiff's fellow servants assisting in loading this vault, or casket as it is generally called, from the truck into the baggage car. The petition alleges that plaintiff was injured "on account of the failure of plaintiff's helpers to exercise ordinary care to lift and raise the front end of said casket high enough to clear the sill of the car door, as they attempted to place the same in said car," whereby the forward end of said casket struck or bumped the sill of the car door, thereby causing the lower edge and corner of the other end of said casket, which plaintiff was lifting and pushing against, to "punch and strike plaintiff with great force and violence, as plaintiff moved forward with said vault in order to lift and hold same and push it into said car door."

It may be remarked here that it is conceded that defendant is an interstate railroad, and that this was an interstate shipment of baggage, so that this case is dominated by the Employers' Liability Act, and it was tried on that theory. We are not, therefore, bothered by any question of contributory negligence as an absolute defense. The defendant railroad had been in the hands of, and was operated by, receivers prior to November 1, 1916, when the defendant company took charge, and defendant !made the defense that plaintiff's injury, if any, was inflicted while the receivers were in charge. The evidence is conflicting on this point, and we understand defendant to concede that Plaintiff's evidence shows the injury to have occurred on November 17, 1916, and the jury's finding on this point is conclusive.

As we understand defendant's contention, it is that, though the evidence is sufficient to uphold a finding that the casket in question bumped or struck against the sill of the baggage car, causing plaintiff to be injured, and even if this bumping or striking resulted from plaintiff's coemplogs not raising their end of the casket high enough to clear the door sill, yet there is no evidence that this was due to any negligent act of such fellow servants. On this point the evidence shows that the casket weighed near 1,000 pounds, and was unloaded on a truck 3 feet high, 32 inches wide, and 10 feet long. It was then rolled to the door of the other baggage car, the truck standing lengthwise with the car, and the casket being turned crosswise with the truck. The floor of the baggage car was about 2 feet higher than the floor of the truck, and the forward end of the casket stood some 8 or 10 inches from the car. The casket was about 2 feet high, so that the top of it was nearly even with the floor of the baggage car. Three men were assisting plaintiff, all of whom were at the forward end of the casket, one standing in the baggage car stooping and lifting, and the other two standing on the floor of the truck, one on either side of the casket, lifting by the handles. The plaintiff stood on the ground or platform at the rear end of the casket, lifting it by placing his hands under the corners. The evidence all is that the three men could easily lift and handle the end that struck the sill of the car door.

The plaintiff testified:

"When we got ready to load it I had it up like this (indicating) on my side, with my head throwed back. I was lifting, and had it ready to go, but did not have it off the truck then. Somebody says, `Let's go.' We picked it up and started, and they didn't get the front end of the casket high enough, and it bumped against the car, and when that bump came, me with my head back and all that way, it caught me in the right side. The right-hand corner or the bottom edge caught me in the right side, I couldn't tell which. I had my head back when the bump came. The casket was so high I had to hold my head back, and in that position couldn't see in front to tell whether they had it high enough or not. I couldn't see the front end at all. These two men were bending over the casket, lifting, and I could not see.

"The casket had handles on the sides, and these two men were lifting on the front handles next to the car. Nobody had hold of the hack end except myself, and I was lifting and shoving, and had lifted my end off of the truck entirely. When the bump came it jabbed me there, and the bops on. the head end kept pulling on, it, and finally they got the casket up in the car door. That end then rested in the car door, and then they turned it loose, and took hold of the handles next to me, and they raised it up with my help, and they then got it into the car."

And on cross-examination he testified:

"When we started to load the vault I was standing on the platform facing the train, facing south, at the north end of the casket. We got ready to lift together; they had to lift 8 or 10 inches or a foot before they got the vault into the car. We got ready and caught hold, and I caught hold at the bottom, as I explained a while ago, and somebody said, `Let's go,' and we raised it up, and went with it. When they said, `Let's go,' I got it and went with them until the bump came. I couldn't tell just how high the front end was when the bump came. It bumped against the car sill. I didn't have my end of the casket as high as they had theirs. I had my head back, and could not see just how high I had my end, but I know it was off the truck. They were all lifting; one man was in the car door. I could see until they got it up past where I could see. "When that jab came I was standing stooping over heaving on it until it got about high enough to set the head end into the car door. At that time my end rested something like that (indicating) against my side, with me holding the weight of it, with the bottom of the casket right opposite the navel, on the right side. I had lifted my end that high off the truck; don't know just how high above the truck I had lifted my end. I had to lift with them so they could go. Our instructions were to keep caskets as near level as possible. It was so far away from the car that I had to lift it so we could carry it towards the car. The front end was sticking south, over the edge of the truck about 3 or 4 inches, and the truck...