Dority v. St. Louis & San Francisco Railroad Company

• Decision Date: 02 March 1915
• Citation: 174 S.W. 209,188 Mo.App. 365
• Parties: W. P. DORITY, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

174 S.W. 209

188 Mo.App. 365

W. P. DORITY, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 2, 1915

Appeal from Cape Girardeau Circuit Court.--Hon. Frank Kelly, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

W. F Evans, Moses Whybark and A. P. Stewart for appellant.

(1) The demurrer to the evidence should have been sustained. (a) There was no causal connection established between the accident and the negligence charged. There was a total failure of proof that the alleged negligence was the proximate cause of the injury. Warner v. Railroad, 178 Mo. 133; King v. Railroad, 211 Mo. 1; Brick Co. v. Railroad, 17 Mo.App. 624; Foley v McMahon, 114 Mo.App. 442; Lawrence v. Ice Co., 119 Mo.App. 328; Guffey v. Railroad, 53 Mo.App. 469. (b) Plaintiff pleaded a specific act of negligence, and the burden of proving the same rested on him. The doctrine of presumptive negligence may not be invoked to piece out and uphold his case. McGrath v. Transit Co., 197 Mo 105; Orcutt v. Bldg. Co., 201 Mo. 443; Cahill v. Railroad, 205 Mo. 404; Roscoe v. Railroad, 202 Mo. 576; Klebe v. Dist. Co., 207 Mo. 489-90; Beave v. Transit Co., 212 Mo. 331; Evans v. Railroad, 222 Mo. 435; Gibler v. Railroad, 148 Mo.App. 475; Pyne v. Marx et al., 152 A.D. 471; 1 Shear. & Redf. on Neg. (4 Ed.), sec. 59. (c) It is not negligence to fail to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened. Brew. Assn. v. Talbot, 141 Mo. 683; Glover v. Bolt & Nut Co., 153 Mo. 327; Trigg v. Land & Lbr. Co., 187 Mo. 227. (2) The verdict is excessive and the result of prejudice and bias of the jury. Railroad v. O'Mara, (Ky.) 76 S.W. 402; Railroad v. Shelburne, (Ky.), 117 S.W. 303; Ray v. Railroad, (Wis.) 75 N.W. 420; Railroad v. Neely, (Tex.) 101 S.W. 481; Railroad v. Rigden, (Ga.) 11 S.E. 603; Olsen v. Wendt, 110 N.Y.S. 153; Townsend v. Joplin, 139 Mo.App. 402; Taylor v. Railroad, 185 Mo. 260.

H. E. Alexander and Thos. F. Lane for respondent.

(1) The demurrer of defendant was properly overruled, because reasonable men might draw different conclusions from the evidence, as to whether defendant was guilty of negligence. It is only where the facts are such that all reasonable men must draw the same conclusion that the question of negligence is for the court. Combs v. City of Kirksville, 154 Mo.App. 645; Schwyhart v. Barrett, 145 Mo.App. 332; Darks v. Scudder-Gale Gro. Co., 146 Mo.App. 246. In an action for injuries, the questions of negligence and contributory negligence are primarily for the jury, and only become questions of law when there is no dispute in the evidence, and but one inference can be reasonably drawn therefrom. Shamp v. Lambert, 142 Mo.App. 567; Tuck v. Traction Co., 140 Mo.App. 335; Lawrence v. Railroad, 141 Mo.App. 338; Johnson & Co. v. Refrigerating Co., 141 Mo.App. 441; Monroe v. Railroad, 155 Mo.App. 710; Osborn v. Nelson, 141 Mo.App. 428; Vaughn v. Brewing Co., 152 Mo.App. 48; Murrel v. Smith, 152 Mo.App. 95. (2) There were two propositions that arose upon the evidence in this case, viz.: (a) Was the defendant guilty of negligence in stacking the drawhead knuckles in the manner shown by the evidence? (b) Was the plaintiff guilty of contributory negligence as shown by the evidence? Both questions were for the jury, and both were properly submitted to the jury under appropriate instructions. Stewart v. Railroad, 142 Mo.App. 322; Heine v. Railroad, 144 Mo.App. 443. (3) The negligence charged by plaintiff and which was properly submitted to the jury under plaintiff's instruction number 1, was simply that defendant had caused the drawhead knuckles to be stacked in an unsafe and negligent manner; that one of said knuckles placed in the rack contained a long loose bolt, in the eye of the knuckle, which prevented the knuckle from fitting into the stack, "causing it to fall." This specific fact was proved by plaintiff and one other witness--the jury found from the evidence in favor of plaintiff. See cases under point I. (4) Under paragraph "C" of appellant's "Points and Authorities" counsel states that "It is not negligence to fail to take precautionary measures to prevent an injury which, after taken, would have prevented it, when an injury could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened." We submit that the true rule in this State is that in case of negligence, liability does not hinge on whether, by the exercise of reasonable prudence, the very injury complained of ought to have been foreseen. The party charged may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Benton v. City of St. Louis, 154 S.W. 473.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action for personal injuries sustained by plaintiff while in defendant's employ as its servant and alleged to have been caused by defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff, and the case is here upon defendant's appeal.

Plaintiff was in defendant's service as a car carpenter at Chaffee, Missouri, and was engaged in repairing a certain car for which he needed a "knuckle," of a certain character, which was to be fastened to a "drawhead," forming a part of the car coupling. It appears that these knuckles are of steel, weighing perhaps fifty or sixty pounds. According to plaintiff's testimony and that of a fellow workman, plaintiff went to a platform where knuckles were kept, in search of a "Tower" knuckle; and not finding such a knuckle in two "knuckle racks" standing on this platform and which contained quite a number thereof, he began to examine other knuckles lying about or piled upon the platform, and had his right hand upon a knuckle which he had just turned over, near one of the racks, when a knuckle fell from the top of such rack injuring his hand.

Plaintiff and his said fellow workman testified that the knuckle which fell had a bolt in the "eye" thereof, which, it is claimed, prevented it from fitting far enough back into the rack to be securely placed therein, by reason whereof it was jarred loose and fell when plaintiff turned over the knuckle upon the platform near this rack.

The negligence charged in the petition is that the knuckle which fell was placed in the above-mentioned rack or stack at the direction of the foreman of defendant's "material department," with a bolt in the eye thereof, "which bolt prevented the knuckle from fitting properly in said stack, causing it to fall."

I. The evidence adduced in plaintiff's behalf is quite meager. It consists of his testimony and that of the above-mentioned fellow workman who was the only other person present. There is no direct evidence as to who placed this knuckle in the rack from which it fell, but the testimony is that it was the duty of those in defendant's "material department" to stack these knuckles, this being a separate and distinct department from that in which plaintiff was working. Plaintiff testified that he had nothing to do with placing knuckles in the racks, and had never put any therein except such as he may have temporarily removed therefrom from time to time, in order to get a lower one, and which he would replace. His testimony is that he did not upon this occasion take any knuckles from this rack; and under the circumstances the presumption should doubtless be indulged that this particular knuckle was placed in the rack by defendant's servants in its material department whose duties were, among other things, to stack and take care of these knuckles. And though the proof does not show that this was done under the direction of the foreman of the material department, as alleged, no point is made of this, evidently for the reason that under the facts of this case no defense could be interposed (and none was) upon the ground that the negligence, if any, was that of a fellow-servant.

Neither plaintiff nor the fellow workman with him observed this knuckle before it fell, and there is nothing to show what in fact was its position in the rack before falling. The knuckle rack consisted merely of slats upon an "A-shaped" frame (i. e., the cross section being an inverted V), which was perhaps ten feet long. The knuckles were stacked therein one upon another, by putting the narrower end or part of each knuckle in the opening between two such slats, thus making a number of tiers thereof upon the slanting sides of the rack. It appears that what is termed the "eye" of the knuckle is an opening through the central portion thereof; and plaintiff's evidence is to the effect that a bolt such as is said to have been allowed to remain in the eye of this knuckle, and which protruded therefrom, would have the effect of preventing the knuckle from fitting far enough into the rack to be secure. While the evidence in plaintiff's behalf does not by any means make out a strong case in his favor, it appears to be sufficient to take to the jury the question of defendant's liability; bearing in mind...