Gayle v. Missouri Car & Foundry Co.

• Decision Date: 30 June 1903
• Citation: 76 S.W. 987,177 Mo. 427
• Court: Missouri Supreme Court
• Parties: GAYLE v. MISSOURI CAR & FOUNDRY CO.<SMALL><SUP>*</SUP></SMALL>

76 S.W. 987

177 Mo. 427

GAYLE v. MISSOURI CAR & FOUNDRY CO.^*

Supreme Court of Missouri, Division No. 2.

June 30, 1903.

FELLOW SERVANTS — WHAT CONSTITUTES — RAILROAD EMPLOYÉS—NEGLIGENCE — JURY QUESTIONS—PERSONAL INJURIES—INSTRUCTIONS —ADMISSIBILITY OF EVIDENCE.

1. Though the question of whether one is a fellow servant with those whose negligence caused his injury may, on undisputed facts, be determined by the court, yet, where the facts are in dispute, the proper course is to leave it to the jury.

2. The retention of a general supervision over the place where work is done, and of the right to inspect various pieces of work to see if they conform to contract, does not render the relation between the parties that of master and servant, rather than of independent contractors, so as to make the fellow-servant rule applicable.

3. Evidence in an action by a car framer against a car manufacturing company for injuries held to render proper submitting to the jury the question whether plaintiff was not an independent contractor, rather than a fellow servant, so as to take the case from the fellow-servant rule.

4. Where a party submits and obtains instructions on the theory that a certain question is for the jury, he cannot afterwards contend that it should, on the evidence, have been decided by the court.

5. In suing a master for the negligence of its servant, it is permissible to allege that the master did the negligent acts, and aver generally that they were negligently and carelessly done; and this is particularly true where no objection to the sufficiency of the pleading is taken before trial, or on the admission of evidence.

6. Evidence in an action by a car framer for injuries occasioned by a piece of timber being struck by a car while moving on a transfer table held to warrant submitting to the jury the question whether two men in charge of the car were not obligated to perform duties which made a lookout by them impracticable.

7. In an action for personal injuries, an instruction that, "if the jury find for the plaintiff, they will assess his damages in such sum as the jury believe from the evidence will compensate

for all pain * * * caused plaintiff," etc., is not objectionable as assuming issuable facts.

8. It is not error to assume in instructions a fact over which there is no controversy.

9. An instruction in a personal injury case that, if the jury believe that plaintiff and his gang were negligent in a certain particular, plaintiff cannot recover, is properly modified by adding the condition that such negligence caused or contributed to plaintiff's injury, especially where the court also instructs that, if plaintiff was guilty of negligence directly contributing to his injury, he cannot recover.

10. An objection to evidence as "irrelevant and incompetent" is too indefinite to be available on appeal.

11. Evidence in an action against a master for a personal injury negligently occasioned by its servants as to the servants' method of working four months before the injury is not so remote as to be inadmissible, where there is no suggestion that a different method had been adopted in the interval.

Appeal from Circuit Court, St. Louis County; John W. Booth, Judge.

Action by James B. Gayle against the Missouri Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Seddon & Blair and Robert A. Holland, Jr., for appellant. Daniel Dillon and Geo. E. Egger, for respondent.

GANTT, J.

This is an appeal from a judgment of the circuit court of St. Louis county for $5,000. The action was for damages caused by personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in negligently running what was charged to be a transfer car, in its carworks, suddenly and violently against a piece of timber, the end of which was projecting over its track, and which piece of timber plaintiff and others were bringing across said track to the shed in which plaintiff and his gang of workmen were framing box cars under a contract with defendant of $3 for each car framed. The answer was a general denial, a plea of contributory negligence, and that, if the injuries were in any wise caused by the negligence of defendant's employés, said employés were the fellow servants of plaintiff, and plaintiff assumed the risk of any negligence on their part. The reply denied all new matter alleged in the answer.

The petition states, in substance, that the defendant is a corporation organized under the laws of this state, and engaged in manufacturing cars in the city of St. Louis, and plaintiff is, and was at the time therein mentioned, a carpenter and contractor, and in the month of July, 1898, he, in conjunction with certain other persons, contracted and agreed with defendant to frame, and do the work in framing, in the sheds and premises of defendant in said city, cars of a certain kind which defendant was then building, and defendant agreed and promised to pay plaintiff and his associates $3 for every one of said cars framed by them. The works or premises of defendant in said city in which said cars were being built constituted, in part, several large sheds, between which ran a transfer track, on which was run by defendant, by means of one engine, a transfer car or platform, which was used to transfer cars from one of said sheds to another. The west one of said sheds on the south side of said transfer track previous to August 22, 1898, was the one in which said cars were framed by plaintiff and his associates; and, in bringing the timbers used in framing said cars, plaintiff and his associates did not have to bring or carry said timbers across the said transfer track. On said 22d day of August, 1898, defendant directed plaintiff and his associates to move from said west shed into the east shed, on the south side of said transfer track, and to frame said cars in said east shed, and thereupon plaintiff and his associates began to frame cars in said east shed. The timbers to be used in framing said ears were required to be brought into said east shed by carrying them across said transfer track—a fact well known to defendant and its superintendent and foreman. And on the 23d day of August, 1898, plaintiff and his said associates were engaged in bringing into said east shed a long and heavy timber, to be used in framing said cars; and when one end of said timber was in said shed, and the other or hind end still projected over and across a rail of said transfer track, and while plaintiff and his associates were engaged in trying to bring the whole of said timber into said shed, the portion of said timber which projected over and across said rail of said transfer track was suddenly and violently struck and pushed by said transfer car or platform and a railroad car which stood on said platform, and said timber was shoved and pushed with great force against a post, causing the other or forward end of said timber, near which plaintiff was, to strike plaintiff, and to force and press him with great force and violence against another timber or post, thereby crushing, mangling, and injuring plaintiff internally and externally, and crippling, injuring, and disabling him for life. "And plaintiff says that when plaintiff and his associates began to frame cars in said east shed as aforesaid, or at any time thereafter, defendant did not notify its servants and employés engaged in running said transfer car and the engine that propelled the same that plaintiff and his associates were working in said shed, and that they would have to bring timbers into said shed over and across the rails of said transfer tracks, and to be on the lookout or watch, so as not to injure them while they were bringing said timbers into said east shed. And it was the duty of defendant, when operating and running said transfer car over and along said transfer track, to have some competent person so placed that he could see any obstacles or obstructions that might be on or over said transfer track, and give notice thereof in time to prevent a collision or injury. And at the time plaintiff was hurt and injured as aforesaid, defendant had no person so placed that he could see obstacles on or over said transfer track. And the employés and servants of defendant who were on said transfer car and engine propelling same at said time, by direction of defendant, were so engaged and occupied in other work that they could not and did not see said timber extending over and across the rail of said transfer track. And plaintiff says that, by the exercise of ordinary care and prudence, defendant would have avoided striking the end of said timber as aforesaid, and injuring plaintiff as aforesaid. And plaintiff says he was injured as aforesaid by the carelessness and negligence of defendant in causing said transfer car or platform, and a railroad car on same, to strike and push said end of said timber projecting over and across the rail of said transfer track as aforesaid. And plaintiff further says that he was injured as aforesaid by the carelessness and negligence of defendant in not notifying its servants and employés on and operating said transfer car or platform and engine propelling same that plaintiff and his associates were working in said east shed, and would have to bring timbers into said shed over and across said transfer track, and to be on the lookout for them crossing said track with said timbers, and by the carelessness and negligence of defendant in not having some person so placed that he could see obstacles on or over said track, and give notice in time to avoid collision and injury, and by the carelessness and negligence of defendant in having its servants and employés who were on said transfer car or platform and engine propelling same at time plaintiff was injured as aforesaid so occupied and engaged at other work that they could not and did not see the said end of said timber projecting over and across the...