Godfrey v. Payne
| Decision Date | 03 April 1923 |
| Docket Number | No. 17608.,17608. |
| Parties | GODFREY v. PAYNE, Agent. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
"Not to be officially published."
Action by John Godfrey against John Barton Payne, Agent. From judgment for plaintiff, defendant appeals. Affirmed.
J. F. Green and H. E. Larimore, both of St. Louis, for appellant. W. H. Douglass, of St. Louis, for respondent.
The facts out of which this litigation grows may be summarized as follows:
On and prior to the 20th day of November, 1918, respondent was in the employ of the United States Railroad Administration and working as a machinist's helper in connection with the properties of the Missouri Pacific Railroad Company, and on the date last named was injured while assisting in removing a coupler plate from an engine then in the shop for repairs.
At the time of the accident the engine about which plaintiff was working stood over a pit, which is a small excavation about 26 inches deep, and extends from practically the inside of one rail to the inside of the other. The iron coupler plate, about 12×18 inches, which was being removed, was attached to the front end of the engine and weighed about 250 pounds. The work was being done by plaintiff and one George Chambers, defendant's foreman. In preparation for the work, and in order to have a place on which to stand, plaintiff, it is claimed, at the direction of the foreman, placed two planks, of an aggregate width of 20 inches, across the rails; and defendant's foreman and plaintiff, in performing the work, stood on the platform made by these two planks, one on each side of the coupler plate that was to be removed. This coupler plate was fastened to the deadwood by means of four bolts.
After taking out the two top bolts of the four bolts which held the casting to the deadwood, plaintiff and the foreman inserted bars through the two top bolt holes to keep the casting from falling, while another employé was driving out the bolts from the bottom holes. When this latter act had been accomplished, plaintiff and the foreman attempted to lower the casting from the deadwood to the boards on which both were standing. Plaintiff testified that by means of his bar he got his side of the casting disconnected from the deadwood and ready to lower the same; but that the foreman, who was unable to get his side of the casting in for fracture of which his bar was inserted loose from the deadwood so as to be able to lower the same, commenced jerking violently at his bar in order to loosen the casting, and the latter finally came loose with a sudden jerk, and the foreman let his end drop suddenly, with the result that the end the foreman was handling fell over toward plaintiff, struck him on the calf or instep of the right leg, and knocked him off of the boards down into this pit. The testimony of the foreman was to the effect that the coupler plate was taken off without difficulty and that plaintiff stepped sideways off of the board, causing plaintiff to drop his bar and fall into the pit.
The petition specified two acts of negligence on the part of defendant, one alleging that the defendant failed to furnish plaintiff with a reasonably safe place in which to work and reasonably safe tools and appliances with which to work, in that, on account of the size and weight of the plate, it was not reasonably safe to take the same off the locomotive while the latter was over the pit; the other that the defendant's foreman negligently handled his end of the plate which was being taken off the locomotive in such a reckless manner as to cause the plate to drop, striking plaintiff's foot, knocking same off the board, and causing plaintiff to fall into the pit.
The case was tried to a judge and jury, resulting in a verdict and judgment for plaintiff in the sum of $7,125. In due course defendant appeals.
Plaintiff went to the jury upon two assignments of negligence, each of which was hypothesized separately in an instruction permitting the jury to return a verdict for plaintiff as for negligence of the defendant if the facts predicated therein were found and believed by them to be established by the evidence.
The first instruction given for plaintiff submitted to the jury the question of the alleged negligence of the defendant in directing plaintiff to assist in taking off the Iron plate from the front beam of the locomotive at a time when the locomotive was standing over the pit. The giving of this Instruction is here attacked by appellant as erroneous, it being urged that under the pleadings and the evidence, even when taken in the light most favorable to plaintiff, the sole proximate cause of plaintiff's injury was the alleged negligent act of the foreman in letting his end of the coupler drop, knocking plaintiff's foot off the board and causing him to fall into the pit, and that "the damage the presence of the pit did in the case at bar was merely consequential, and that such presence in no wise caused plaintiff to fall, but was merely a consequence growing out of the fall"; that
In support of this contention we are cited the case of Bootman v. Lusk (Mo. App.) 190 S. W. 414, in which case the grounds of the defendant's negligence alleged in the petition and submitted by instructions were: First, that the defendant did not furnish plaintiff a safe tool with which to do his work; second, that the defendant did not furnish plaintiff a reasonably safe place to work. There the plaintiff, a car repairer employed by the defendant railroad company, in loosening a bolt on the trucks of a freight car which had been moved from under the car for that purpose, stood on the journal of the trucks and pried a bolt with a claw bar which slipped, causing him to fall from the truck which stood on an unballasted track with the ties exposed, so that his injury was made more severe by striking one of the exposed ties. The court held that the slipping of the claw bar and his' fall, and not the ties, were the proximate cause of the injury. In the course of the opinion it is said:
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