Haggard v. Southwest Missouri Railroad Company
| Decision Date | 28 February 1920 |
| Citation | 220 S.W. 22,205 Mo.App. 7 |
| Parties | JOHN HAGGARD, Appellant, v. SOUTHWEST MISSOURI RAILROAD COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jasper County.--Hon. J. D. Perkins Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Frank H. Lee, John T. Craig and Ray Bond for appellant.
McReynolds & McReynolds and J. H. Flanigan, Jr. for respondent.
This is a master and servant case. The plaintiff filed suit against defendant for damages on account of injuries alleged to have been received by him while in the employ of the defendant. A number of grounds of negligence were assigned but the case when submitted by the plaintiff eliminated all grounds of negligence except the following: "That the defendant negligently and carelessly failed to furnish sufficient light in said barn and by reason thereof plaintiff was unable to see said pit and was liable to fall therein." The cause was submitted to the jury, which returned a verdict for defendant. The plaintiff appeals, alleging that the court erred in modifying an instruction asked by him, and assigning that the same error was incorporated in the instructions asked by the defendant and given by the court.
The plaintiff asked an instruction which was modified by the court over his objection and exception. We set out the instruction as given by the court after modification, and italicize that part which the court added of its own motion, and that part which the plaintiff now contends constituted error against him.
"You are instructed that it is admitted in this case that the plaintiff, on the 17th day of May, 1918, was working for defendant as its employee, in defendant's car barn at Webb City, Missouri, and that the defendant maintained beneath the tracks in said car barn pits to enable workmen to get under said cars; and you are instructed that it was defendant's duty, as plaintiff's employer, to exercise ordinary care to provide plaintiff a reasonably safe place in which to perform his work; and if you believe from the evidence that defendant negligently and carelessly failed to cause said barn and the place where plaintiff worked to be sufficiently lighted to enable plaintiff to see and avoid said pit, and if you further believe that plaintiff did not know that said pit was there, (italics ours) and that by reason of such failure, if any, to cause said barn to be sufficiently lighted, said place was rendered dangerous and unsafe for plaintiff working in said barn, and if you further find from the evidence that on said 17th day of May, 1918, plaintiff, while performing his duties as the employee of defendant and on account of being unable to see said pit as a result of said barn not being sufficiently lighted (if you believe he was unable to see said pit on account its not being sufficiently lighted) stepped into said pit and was injured thereby, and if you further find that the plaintiff at said time was exercising ordinary care for his own safety, then your verdict will be in favor of the plaintiff."
The defendant in answer to the charge of error contends that the plaintiff made no case that should have ever been submitted to the jury, and contends that the trial court should have given the instruction asked by it in the nature of a demurrer to the evidence. The defendant does not seriously contend that if there was a case made by the plaintiff that the instruction complained of by the plaintiff does not contain error, but relies upon the broad ground that no case having been made there could be no reversible error in the instruction. This necessitates a statement of the facts of the case as told by the plaintiff, who was the only witness for plaintiff. Viewing such testimony in its most favorable light, and for the purpose of this appeal taking as true that which the plaintiff testified to.
It appears that the defendant operated a car barn at Webb City, Missouri, which is divided into stalls or sections; these stalls are 196 feet long and 27 feet wide, throughout the length of which are run two tracks upon which the street cars owned by the company are run for the purpose of cleaning, repairing and working on while in the barns. Between these tracks there is a pit run practically the full length of the barn, which pit is about 4 feet wide and 4 feet deep, placed under the tracks for the purpose of permitting the workmen and cleaners to work on the wheels and machinery when necessary to go under the cars. The stall lies east and west, and the car entrance to this stall is on the west. The tracks run back to within about ten feet of the back or east end. The pit commences near the west end or entrance end and runs the full length of the track. Artificial lights are provided in the stall, hung or stationed along through it for the purpose of lighting it up. The natural light enters this stall from the west or entrance end, which when the doors are open, as they were on the day plaintiff was injured, makes an opening or space of about 26 feet wide by 16 feet high. On the east end, directly back or opposite the end of each track are double windows which permit light to come in from the east end. There are no natural side lights or windows. On the day plaintiff was injured he entered the stall from the east end and was told by the man under whom he was working for the defendant, another car cleaner, to clean up a car which was located at the extreme east end of the building. It appears that there were no other cars on this track that morning.
The plaintiff testified that he was 69 or 70 years of age, that his eye-sight was good, and that on the morning of May 17, 1918, was the beginning of the second day he began to work for the defendant company, having worked there in that stall cleaning cars all the day before. He testified that when he went to work he was told by his foreman to put the trolley of the car on the wire so that it would light up the car, and further testified that the electric lights throughout the stall, which were 16-candle-power incandescent lights, three in number, in a row, stationed every 14 ft. apart throughout the stall, were not lighted up. He further testified that on the day before these lights were lighted while he worked in the barn. He says that it was dark where he was working on this car, to such an extent that he could not see the rope that held the trolley; that he was reaching and feeling for this rope when he stepped into the pit which was under the track and was injured. The place where he stepped into this pit was at the west end of the car, which, as stated before, was stationed at the extreme east end of the track. The car, therefore, was between where he was and the windows which permitted the natural light to come into the stall from the east end thereof, he being the full length of the car and about 10 ft. from the east or back end of the stall and being probably 150 to 165 feet from the west or entrance end of the stall, where the doors were located.
On the question of whether plaintiff made out a case under the allegation of failure to properly light, we turn to plaintiff's testimony and find that he says: ...
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