Davis v. The Buck's Stove Co.

• Decision Date: 02 April 1932
• Docket Number: No. 30002.,30002.
• Citation: 49 S.W.2d 47
• Parties: DEL H. DAVIS v. THE BUCK'S STOVE AND RANGE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

49 S.W.2d 47

DEL H. DAVIS v. THE BUCK'S STOVE AND RANGE COMPANY, a Corporation, Appellant.

No. 30002.

Supreme Court of Missouri, Division One.

April 2, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

AFFIRMED (upon condition).

Harold F. Hecker, Lyon Anderson and Leahy, Saunders & Walter for appellant.

(1) Defendant's requested instruction in the nature of a demurrer to the evidence should have been given. Cash v. Sonken-Galamba, 17 S.W. (2d) 927; Katz v. N. Kansas City Dev. Co., 215 Mo. App. 662, 258 S.W. 752; Hake v. Buck's Stove & R. Co., 234 S.W. 1061; Dyer v. Sutherland Bldg. etc. Co., 258 S.W. 48; Hamilton v. Ray, 250 Mo. 715; Swearingen v. Ry. Co., 221 Mo. 644; Weber v. Valier-Spies Milling Co., 242 S.W. 989. (2) Plaintiff's Instruction 2 is erroneous because it fails to include as a necessary element of liability knowledge, actual or constructive, of the alleged defective condition of the crane. Winslow v. Ry. Co., 192 S.W. 121; Cash v. Sonken-Galamba Co., 17 S.W. (2d) 927. (3) Plaintiff's Instruction 2 is erroneous because it submits a question of law to the jury. Winslow v. Ry. Co., 192 S.W. 121; Owens v. McCleary, 281 S.W. 682, 313 Mo. 213; Allen v. Transit Co., 183 Mo. 411; Munoz v. Am. Car & Foundry Co., 296 S.W. 228, 220 Mo. App. 902; Ward v. Poplar Bluff Ice & Fuel Co., 264 S.W. 80. (4) Plaintiff's Instruction 2 is erroneous because it assumes a fact not in evidence. Hunter v. American Brake Co., 231 S.W. 659. (5) Plaintiff's Instruction 2 is erroneous because it submits a charge of negligence not pleaded. Schumacher v. K.C. Breweries, 247 Mo. 141; Allen v. Ry. Co., 294 S.W. 80; Hufft v. Railroad Co., 222 Mo. 286. (6) Plaintiff's Instruction 2 is erroneous because it assumed a disputed fact; that is, that the crane was unfastened at the time of the accident. Eudy v. Federal Lead Co., 220 S.W. 504; Reel v. Consolidated Inv. Co., 236 S.W. 43. (7) Defendant's requested Instruction D should have been given. (8) The verdict was so excessive as to indicate passion and prejudice on the part of the jury, with the result that defendant was not accorded a fair and impartial trial; and the court erred in not sustaining defendant's motion for a new trial on that ground.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The defendant (appellant) owed the plaintiff the duty of ordinary care to keep the crane so secured and fastened as to prevent it from swinging around over the tracks. Crawford v. Stock Yards Co., 215 Mo. 413; Kennedy v. Phillips, 319 Mo. 573; Glazer v. Rothchild, 221 Mo. 180; Ford v. Rock Island Co., 280 Mo. 225; Welsh v. McAllister, 15 Mo. App. 496; Graham v. Shoe Co., 165 Mo. App. 361; Young v. Waters Pierce Motor Co., 185 Mo. 666; Houser v. Railroad Co., 319 Mo. 1025. (2) The facts that the crane when left unfastened would of its own weight and momentum swing around over the tracks and that it did so and was in that position when the engine (on which plaintiff was riding when hurt) encountered it, and that the crane was an instrumentality of defendant's business and in its exclusive control, made a prima-facie case of negligence of defendant in failure to have and keep its crane securely fastened so as to prevent it from swinging around over the tracks and cast upon defendant the burden of satisfying the jury that the position of the crane was not due to any failure of ordinary care on its part. Crawford v. Stock Yards Co., 215 Mo. 417; Kennedy v. Phillips, 319 Mo. 586. (3) It was not necessary, under the facts hypothesized in Instruction 2, to require the jury to find specifically that the defendant had knowledge of the unsecured condition of the crane at the time of its collision with the engine. Morton v. Construction Co., 280 Mo. 380; Midway Bank v. Davis, 288 Mo. 563; Messing v. Drug Co. (Mo.), 18 S.W. (2d) 408; Hulsey v. Construction Co. (Mo.), 30 S.W. (2d) 1018; Kamer v. Railway Co., 32 S.W. (2d) 1083; Bodenmiller v. Box Co., 237 S.W. 879; Stegeman v. Packing Co., 2 S.W. (2d) 169. (4) Appellant owed respondent the duty of ordinary care to keep the crane arm securely fastened and, if it was left unfastened by defendant's servants, such act on their part was of like effect so far as concerns any requirement of knowledge on the part of the master as if done by the master himself. Bodenmiller v. Box Co., 237 S.W. 879; Busby v. Bell Tel. Co., 287 S.W. 437; Bender v. Grocery & Baking Co. (Mo.), 276 S.W. 405. (5) By going to the jury on the first specification of negligence charged in the petition, to-wit, failure to cause the crane to be securely fastened, plaintiff abandoned all other specifications. Dietzman v. Screw Co., 300 Mo. 196; Phillips v. Railway, 226 S.W. 863; Johnson v. Railroad, 259 Mo. 534. Failure to withdraw an abandoned instruction is not prejudicial error. Dietzman v. Screw Co., 300 Mo. 196; Johnson v. Railroad, 259 Mo. 534; Gehbauer v. Bakery Co., 285 S.W. 170; Snyder v. Western Union, 277 S.W. 362; Agee v. Railroad, 288 S.W. 992; Hutson v. Stair Co., 296 S.W. 216; Flach v. Baugh, 240 S.W. 469; Goodwin v. Am. Car & Foundry Co., 285 S.W. 529; Roland v. Anderson, 282 S.W. 752. (6) Instruction 2 does not assume as fact that the defendant "suffered and permitted said jib or arm of the crane to be and remain unfastened and not secured." Oglesby v. Ry. Co., 1 S.W. (2d) 172.

STURGIS, C.

This suit is for personal injuries brought against the St. Louis Merchants Bridge Terminal Railway Company, herein called the Terminal Railway, and The Buck's Stove and Range Company, a manufacturing corporation of St. Louis. On the trial to the jury judgment went for the Terminal Railway Company by direction of the court on demurrer to the evidence, and against the Stove and Range Company, which appeals the case here and will be referred to as the defendant or appellant.

At the time of plaintiff's injuries the defendant was operating a large plant in St. Louis. By a mutual business arrangement the Terminal Railway had constructed and was operating a switch track into and through the defendant's yards for the purpose of hauling freight in and out. This switch track was on defendant's premises but was maintained and kept in condition by the Railway Company, and the engines and cars and the crew operating the same were furnished by the Railway Company. The plaintiff was a fireman in the employ of the Railway Company on an engine which came into defendant's plant on this switch track to move cars of freight in or out. The defendant from time to time communicated with the Railway Company's manager at its office as to the switching work it wanted done. This switch track extended in a general east and west direction, with the buildings of defendant's plant on either side. The buildings on the south side of the switch track, the fireman's side of the cab when going west, were located near the switch track, some 54 inches from the south rail. The projection or overhang of the engine cab was some 30 inches, leaving 24 inches in the clear. The engine in question, with plaintiff as fireman, was going west and plaintiff's evidence is that the buildings were so close to his side of the cab that it was dangerous to put his head out the side window to look forward for a clear track. Plaintiff's injury was caused by his being struck with what is called a "crane," erected, used and maintained by defendant, attached to and alongside of a building on the south side of the switch track with its arm or jib, when in use, extending over the rails of the switch track and being some eight or nine feet high. This arm or jib of the crane worked on a pivot and when in use swung around over the switch track, and when at rest and not in use was fastened alongside of the building parallel with the south rail. This crane was used by defendant to convey material from its building on the south of the track to its building on the north side, or vice versa, and as an engine would not pass under it, when it was not in actual use it was supposed to be securely fastened by a safety catch to prevent its swinging out and over the switch track. There was evidence that when not fastened it was naturally inclined to do this.

On the occasion of this injury the engine of which plaintiff was fireman, and riding on the south side next to the crane, came into the yards over this switch, about eight o'clock in the evening, travelling at some five or six miles per hour, and suddenly ran into the arm of the crane which crashed into and penetrated the engine cab, striking the plaintiff and breaking his leg and inflicting other injuries.

In his petition plaintiff alleges, in substance and in legal vernacular, that said device or crane was so constructed as to have an arm or jib which would and could be caused to move, protrude and swing out, near to or over said switch or railway track and in the path of locomotive engines and cars passing along and over said track at said point; that about the 2nd day of September, 1926, he was in the employ of defendant Railway Company as a locomotive fireman on a locomotive engine then being used by the said defendant Railway in handling and switching railway cars on said switch track as aforesaid, when said locomotive engine was then and there caused, suffered and permitted to run against and come into violent contact and collision with said arm or jib of said crane, which was then and there negligently and carelessly caused, suffered and permitted by the defendants, in the nighttime, to be unfastened, projecting and protruding out, near and over said railway track and in the path of said locomotive engine, whereby plaintiff was seriously and permanently injured, as a direct and proximate result of the negligence and carelessness of the defendants, in the following respects:

1. That defendants negligently and carelessly placed, erected and maintained said crane in such close proximity to said railway track as to permit the said arm or jib of...