Davidson v. St. Louis-San Francisco Ry. Co.
Decision Date | 30 December 1920 |
Docket Number | No. 21505.,21505. |
Citation | 229 S.W. 786 |
Parties | DAVIDSON v. ST. LOUIS-SAN FRANCISCO RY. CO. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Newton County; Charles L. Henson, Judge.
Action by Ben F. Davidson against the St. Louis-San Francisco Railway Company. Verdict and judgment for plaintiff, and from order granting a new trial plaintiff appealed to the Court of Appeals, which remanded the cause with directions to set aside the order granting a new trial and to enter judgment (207 S. W. 277), but on motion for rehearing the cause was transferred to the Supreme Court. Order granting new trial affirmed, and cause remanded.
This is an action for personal injury instituted in the Newton circuit court, where it was tried in October, 1917, resulting in a verdict and judgment for $7,500. A new trial was awarded on motion of defendant containing several specifications of error; but the court, in its order, placed the action upon the ground of its refusal to give, at the request of defendant, an instruction in the nature of a demurrer to the evidence.
An appeal from this action was duly taken to the Springfield Court of Appeals, which remanded the cause with directions to the circuit court to set aside its order granting a new trial and to enter judgment on the verdict.
Upon motion for rehearing, which was overruled, the Court of Appeals transferred the cause to this court on the ground that its opinion and judgment is contrary to the rule stated by the Kansas City Court of Appeals in Neth v. Delano and Others, reported in 184 Mo. App. at page 652, 171 S. W. at page 1.
The cause is submitted here upon the sole question whether the evidence submitted to the trial jury is sufficient in law to sustain its judgment and verdict for the plaintiff.
The injury complained of was suffered in the defendant's railway station at Monett, Mo., at which the plaintiff was employed as a baggage trucker, and was incident to the handling of a steel casket or vault containing a dead body, and weighing, in that condition, 900 pounds or more. He, with his assistants, was transferring it from the baggage car of a train on which it had just arrived from the point of shipment in Kansas to the baggage car of another train about to leave, for further carriage to its point of destination in Arkansas. The case being controlled by the Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), no question is made as to defendant's liability for the negligence of fellow servants, nor is the question of distribution of damages to which plaintiff's negligence may have contributed presented. Nothing is before us but the clean-cut question of the sufficiency of the evidence to take the case to the jury. The negligence involved in this inquiry is, as stated in the petition, "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."
The train which brought this casket to Monett as baggage arrived at 7:55 a. m. The train to which it was to be transferred left for Arkansas at 8:5 a. m.
In his testimony plaintiff states the facts as follows:
On cross-examination he said:
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