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

• Decision Date: 20 November 1923
• Docket Number: No. 23326.,23326.
• Citation: 301 Mo. 79,256 S.W. 169
• Parties: DAVIDSON v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

256 S.W. 169

301 Mo. 79

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

No. 23326.

Supreme Court of Missouri, in Banc.

November 20, 1923.

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

Action by Ben F. Davidson against the St. Louis-San Francisco Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Sizer & Gardner, of Monett, and John T. Sturgis, of Springfield, for appellant.

W. T. Evans, of St. Louis, and Mann & Mann, of Springfield, for respondent.

GRAVES, J.

This is the second appearance of this case here. The opinion which sets out the facts in the previous hearing will be found in 229 S. W. 786, to which opinion we refer, without going into detail. At the first trial the plaintiff had a verdict, but the trial court granted a rehearing. This order the Springfield Court of Appeals (207 S. W. 277) reversed, but certified the case to this court after the filing of a motion for rehearing. The certification was upon the ground that their opinion conflicted with Neth v. Delano, 184 Mo. App. 652, 171 S. W. 1, from the Kansas City Court of Appeals.

The history of the case is of value upon this hearing. Plaintiff and three others were undertaking to load from a baggage truck an exceedingly heavy steel casket and corpse into a baggage car of one of defendants' passenger trains at Monett, Mo. For details, see our previous opinion, supra. The causal negligence in the original petition reads:

"That the defendant failed to exercise ordinary care to furnish plaintiff and his helpers a sufficient and adequate number of men to handle said steel vault or casket with safety to themselves, and on account thereof, and on account of the failure of plaintiff's helpers to exercise ordinary care to lift and raise the Q front end of said casket high enough to clear the sill of said car door as they attempted to place the same in said, car, plaintiff was caused to be injured, as aforesaid, and thereby disabled and crippled for the balance of his natural life."

Plaintiff was at the foot of the casket, and in his first petition; among other things averred, we find this clause:

"As plaintiff moved forward with said vault in order to lift and hold and push it into said car door."

Upon the first hearing here, we ruled that no negligence was shown upon the part of the defendant, and we affirmed the order for a new trial. Upon a return of the case to the circuit court, an amended petition was filed, in which the word "push" was eliminated, and the causal negligence thus stated:

"Plaintiff states that the defendant, its agents, servants, and employees, failed to exercise ordinary care to lift and raise the front end of said casket high enough to clear the sill of said car door as they attempted to place the same into said car; and that plaintiff's said coemployees carelessly and negligently pulled and swung said casket forward against the sill of said car before the front end of said casket had been raised high enough to clear the door sill, and thereby caused said casket to strike and violently bump against said door sill and injure plaintiff as aforesaid; which said carelessness and negligence directly caused plaintiff's injuries, and thereby plaintiff was disabled and crippled for the balance of his life."

Instead of the clause containing the word "push" set out, supra, the amended petition avers that plaintiff was injured "as the same casket was so pulled and slid forward from the truck." This act of "pulling" was charged to his coemployees alone. This, in the face of the fact that plaintiff on the former trial had testified that he was pushing the casket at the time of the injury. He swore to that in accordance with the allegations of his petition. Not only so, but the "pushing" by plaintiff was submitted in his first instruction at the first trial. If the trial involved in this appeal he swore in accordance with the allegation of the amended petition, and says that he was not "pushing." However, one of his witnesses, Bob Hutchins, stuck to the original petition, for upon cross-examination he says:

"Q. And they lifted the south end, then he pushed from the north end, so as to push it on into the car. A. Yes.

"Q. He merely held the north end there until they raised the south end and got it up on the south end, and he would push it in the car—was that the way you did it? A. When we started with it off the truck and the man in the car said, `Ready,' why Davidson was against it. When we turned the casket two or three feet with the end towards the car, that puts the end of the casket next to the car door, and when the man said, `Ready,' Davidson had hold of it and pushed against it; and when the fellows raised it, it bumped while he was pushing against it."

This appears from the additional abstract filed by respondent, which stands here unchallenged. From the same source the following vital testimony appears from the plaintiff:

"Q. And did the casket stop then, too? A. When it bumped the car it did. The boys were about to have to let it down on the truck again, but they kept struggling with it and got it in the car."

This is of importance on the question of negligence, when it is borne in mind that the amended petition eliminates the charge that defendant was negligent in failing to furnish help enough for the work to be done. That charge was in the original petition and was a part of the causal negligence then pleaded.

For the details we refer to our former opinion in 229 S. W. 786. For all matters of importance in this hearing the foregoing will suffice for a statement of the case.

I. Much space in the brief is devoted to the question as to the extent our former opinion in this case will bind the court in this hearing. We shall not review the many cases cited. It suffices to say that such opinion is the law of the case, unless the pleadings have been amended so as to introduce new issues, or the evidence on the retrial is substantially different, from the evidence considered upon the vital questions at the former hearing here. It should be further stated, however, that even if there is no substantial difference in pleadings and proof upon the retrial, yet if this court upon second appeal finds that it was in error upon the first hearing, it not only has...