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

Decision Date30 December 1920
Docket NumberNo. 21505.,21505.
Citation229 S.W. 786
PartiesDAVIDSON v. ST. LOUIS-SAN FRANCISCO RY. CO.
CourtMissouri 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:

"This was a square lead-colored steel vault. Coming up to the top, it projected out to the side, and a little oval on the top, and flared down a man's size vault, and about 7 feet long. There was a projection around the bottom of the vault at the ends, of about an inch or an inch and a half. This vault was from 28 to 32 inches in width and approximately 2 feet high. We slid this vault out of the door of the car on train 304 onto the truck, and got down on the platform and straightened it around on the truck. We then pulled the truck over to train 715 and lined the truck up by the side of the baggage car of train 715 and got ready to load the casket into that car. The train stood east and west. We lined the truck up in front of the express car door and on the north side of the car, with the head of the corpse to the west and the feet to the east. We then turned the casket on the truck with the feet to the south (?) and the head to the north (?) to load it into the express car. I had instructions from Mr. Mills, the agent I was working under, to handle this baggage as quickly as possible, and when it came to handling corpses to keep them as nearly level as possible. The conductor was present and said: `Hurry up, boys! we want to get out of town.'

"I was standing on the concrete platform and took hold of the casket with my right hand under one corner and my left hand under the other. The truck was just high enough for the bottom edge of the casket to strike me right opposite the navel. George Patton was on the west side of the truck and one man in the car door. He started to squat down to get hold of the end of the casket to try to load it with just me and them two. I said to them: `Boys, we can't do anything with it that way. We will have to have some more men.' At that time a man came and got up on the truck on the east side of the casket, and that threw two men on the front end and me on the other end, and this man in the car door stooped down waiting for them to get it high enough so he could take hold of the casket. When we got ready to load it, I had it up like this (indicating) on my side, with my head thrown 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 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 bold of the back 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 boys 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.

"I would guess this casket to weigh 900 or 1,000 pounds. It was a steel lead-colored vault. I had handled caskets before, and my instructions were to keep them as near level as possible."

On cross-examination he said:

"It was my duty to transfer baggage train 304 to 715 each morning. We pulled the truck from train 304 over to the baggage car of train 715 and stopped the truck, 1 judge, about 8 or 10 inches away from the baggage car. Then we pulled the casket around crossways of the truck, with the head end towards the south. This left very little overhang on the head end, and we had quite a good deal more overhang on the north side of the truck than we did on the south. We had to place it that way to get into the car. When we turned it that way it threw it over 2½ or 3 feet on the north side. * * * The front end was sticking out over the edge of the truck about 3 or 4 inches, and the truck was about 10 inches from the car. That would make the head end of the casket about 7 or 8 inches from the car."

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