Enloe v. American Car & Foundry Co.

• Decision Date: 29 February 1912
• Citation: 144 S.W. 852,240 Mo. 443
• Parties: ENLOE v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Supreme Court

144 S.W. 852

240 Mo. 443

ENLOE v. AMERICAN CAR & FOUNDRY CO.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. TRIAL (§ 139)—TAKING CASE FROM JURY —DEMURRER TO EVIDENCE.

A demurrer to the evidence may be sustained only when the cause of action pleaded is unsustained by any material evidence, or by any inferences reasonably to be drawn from the facts proven.

2. MASTER AND SERVANT (§ 278)—INJURIES TO SERVANT—ACTIONS—EVIDENCE.

In an action for injuries to a servant by alleged negligence in placing a car on a track on which the plaintiff was at work between two other cars, evidence held sufficient to go

to the jury on the question whether plaintiff was warned of the danger.

3. TRIAL (§ 253) — INSTRUCTIONS — SUFFICIENCY.

An instruction for a plaintiff, in an action for damages for injuries, which purports to cover the case, and direct a finding, must embrace, either affirmatively or negatively, all legal defenses arising under the pleadings and proof.

4. MASTER AND SERVANT (§ 135)—INJURIES TO SERVANT—NECESSITY OF WARNING.

A custom of a car building company to warn employés engaged in building car bodies in a shed only at the time the first of a number of cars was placed in a position is no defense to an action for injuries from being crushed between cars, where there was no showing that the servant injured, who had been at work but four days, had any notification or information as to such custom.

5. TRIAL (§ 296)—INSTRUCTIONS—OMISSIONS CURED BY OTHER INSTRUCTIONS.

An instruction, in an action for injuries from being crushed between cars while working in a car shed, cannot be complained of, though omitting, as an affirmative defense, a custom of the employer to give warning of the movement of cars into the shed only at the time the first of a number of cars were moved, where another instruction submitted that, if the jury found that the foreman in charge failed to exercise ordinary care in moving the car, causing the injury, without warning to the plaintiff who was injured thereby, they should find for the plaintiff.

6. MASTER AND SERVANT (§ 185)—INJURIES TO SERVANT—FELLOW SERVANTS.

Employés of a car building company, who were charged with a duty to warn other employés engaged in building car bodies of the movements of cars, were the representatives of the company, and not fellow servants of a body builder, injured by being crushed on a movement of cars.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Allen C. Enloe against the American Car & Foundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The defendant maintains large grounds and inclosures for building cars for railway purposes, and in them has placed a "body shed" containing two railroad tracks upon which incomplete cars are moved and left, so that work and labor can be done on them by employés. Plaintiff was engaged, prior to January 31, 1908, to do certain carpentry work on such cars as defendant should place on the tracks laid in this shed. At that time, three cars were standing on one of these tracks, extending north and south, and while plaintiff was affixing timbers (deadwood) to one of said cars, and was standing, for that purpose, in a space of about two feet between the most northerly and the two remaining cars, a fourth car was shoved against the two cars south of plaintiff, causing him to be crushed against the northern-most car and thereby severely injured. The petition alleges that this was done by defendant negligently and without warning to plaintiff. The answer contains a general denial and plea of contributory negligence and an assumption of risk.

On the trial, the plaintiff gave evidence tending to prove the foregoing facts, and also the acts of negligence alleged in his petition. The evidence as to the custom to give notice of the advent of cars in this shed was conflicting. Plaintiff's testimony was that a warning was given to him of the approach of each car brought into the shed, so that he and his two assistants could get out before the coming car could strike the one on which they might be at work, and that this warning was given by the foreman or one of the body workers, who would bring in the car. For defendant, the testimony on this point was that when several cars were ready to be brought into the shed it was customary to give notice before moving the first one. After which the movers would go back and get the others and bring them in singly, without any further notice. There was a verdict and judgment for plaintiff, which, on the 25th of January, 1909, was reduced by a remittitur to $10,000. Defendant perfected its appeal to this court, and assigns as error, first, the refusal of the court to direct a nonsuit; second, the giving and refusal of instructions.

Watts, Williams & Dines and W. R. Gentry, for appellant. Earl M. Pirkey, for respondent.

BOND, C. (after stating the facts as above).

1. We see no legal basis for the contention that the trial court should have sustained the demurrer to the testimony, either at the conclusion of plaintiff's case or the whole case. This can only be done when the cause of action pleaded is unsustained by any material evidence, or by any inferences reasonably to be drawn from the facts proven. Eckhard v....