Enloe v. American Car and Foundry Company
| Citation | 144 S.W. 852,240 Mo. 443 |
| Parties | ALLEN C. ENLOE v. AMERICAN CAR AND FOUNDRY COMPANY, Appellant |
| Decision Date | 29 February 1912 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.
Affirmed.
Watts Gentry & Lee for appellant.
(1) The court erred in overruling the defendant's demurrer to the evidence. The plaintiff was working on a track where cars were liable to be moved at any time. We invoke the same rule that has been frequently applied in cases where section hands or others, even including persons who were not employees were injured while working upon or adjacent to a railroad or street car track and allowed themselves to become absorbed in their work so that they did not notice the approach of trains or cars. In such cases the courts hold that there can be no recovery. Degonia v. Railroad, 224 Mo. 564; Van Dyke v. Railroad, 230 Mo. 259; Brockschmidt v. Railroad, 205 Mo. 435; Ginocchio v. Railroad, 155 Mo.App. 163; Hitz v. Railroad, 152 Mo.App. 687; Clancey v. Railroad, 192 Mo. 615; McGrath v. Transit Co., 197 Mo. 97; Sissell v. Railroad, 214 Mo. 515; Evans v. Railroad, 178 Mo. 508; Davies v. Railroad, 159 Mo. 1. (2) The court erred in giving instruction 1 at the request of the plaintiff. This instruction ignores the testimony of defendant's witnesses Sofka and McMullen, to the effect that the custom was to give a warning only when the first of a group of three or four cars was about to be moved and that it was generally understood amongst all the employees around there that no further warning was to be given as each car was moved separately. (3) The court erred in refusing instruction A, offered by the defendant. Donnelly v. Manufacturing Co., 75 P. 1017; Railroad v. Knerin, 152 Ill. 456; Hawk v. Lumber Co., 166 Mo. 121; Jackson v. Mining Co., 106 Mo.App. 441; Johnson v. Railroad, 104 Mo.App. 588.
Earl M. Pirkey and George W. Wadlow for respondent.
(1) Whenever it becomes necessary to disturb cars at or about which persons are engaged, it is the duty of the company moving the cars to warn those at or about the cars of the contemplated movement in time for them to give heed to their safety. Gayle v. Car & Foundry Co., 177 Mo. 427; Koerner v. Car Company, 209 Mo. 141; Ryan v. Railroad, 115 F. 197; Butler v. Railroad, 155 Mo.App. 287; Railroad v. Shaw, 116 F. 621; Lovell v. Railroad, 121 Mo.App. 471; Railroad v. Miles, 24 C. C. A. 559; Spotts v. Railroad, 111 Mo. 380; Jacobson v. Railroad, 41 Minn. 206; Railroad v. Duncan, 88 Tex. 611; Railroad v. Goebel, 119 Ill. 524. (2) The court did not err in refusing instruction A. It was erroneous for the following reasons: (a) Plaintiff was an independent contractor and was not a fellow-servant with the body builders. Gayle v. Car & Foundry Co., 177 Mo. 427; Koerner v. Car Co., 209 Mo. 141. (b) John Sofka, defendant's vice-principal in charge, was a body builder, and for his negligence the appellant is liable to plaintiff. Plaintiff and Sofka were not fellow-servants. Now the car in question was moved by Sofka. Consequently, if there was any negligence he was partly or entirely responsible. He was a body builder and for his negligence the company is certainly responsible, yet the refused instruction required the jury to find for the defendant if plaintiff's injuries were caused solely by the negligence of the body builders, that is, that although Sofka, a foreman and body builder, was partly or entirely negligent the defendant is not responsible. If it be claimed that the term body builders as used in the instruction referred to the men working under Sofka and not to Sofka himself, it was misleading because Sofka was classed as a body builder. Moreover. there was no evidence to show that the men under Sofka were solely negligent. Sofka himself was partly or solely negligent.
The defendant maintains large grounds and enclosures 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 employees. 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 northernmost 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.
OPINION.I. 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. Transit Co., 190 Mo. 593, 89 S.W. 602, and cases cited; Ellis v. Metropolitan St. Ry. Co., 234 Mo. 657, 673-674, 138 S.W. 23; Waddell v. Railroad, 213 Mo. 8, 16; Klockenbrink v. Railroad, 81 Mo.App. 351; Affirmed, 172 Mo. 678.]
In the case at bar, the testimony of plaintiff and others for him tended to prove that he and his two assistants (his son and nephew) employed by him were put to work on such cars as defendant might bring into the shed; and that before other cars were shoved into this workshop, the established custom upon which they relied was that notice or warning would be given to them of the approach of each car as it was being moved by another set of workmen under the orders of their foreman. That notice was given of the arrival of one car, and plaintiff stood out of its way. He thereupon resumed his work between two of the three cars then left on the track in the shed, and about fifteen minutes thereafter he was injured by the coming together of the two cars between which he was working, caused by the impact of a fourth car brought in by the foreman of the other gang of workmen. On this point the foreman (John Sofka) testified as follows: ...
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