Hanks v. St. Louis-San Francisco Railroad Company, a Corp.
| Decision Date | 06 March 1925 |
| Citation | 269 S.W. 404,217 Mo.App. 528 |
| Parties | ROBERT L. HANKS, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILROAD COMPANY, a Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Butler County.--Hon. Almon Ing, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. F Evans, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.
(1) Defendant's demurrer should have been sustained. (a) The plaintiff having charged specific acts of negligence the rule of res ipsa loquitur does not apply. Motsch v. Standard Oil Co., 223 S.W. 677; Rice v. White et al., 239 S.W. 141; Patter v. Street Ry. Co., 142 Mo.App 220; The Great Northern, 251 F. 826; White v. Chicago G W. R. Co., 251 F. 826. (b) The law indulges a presumption that the defendant was free from negligence, and this presumption obtains and continues until it is overthrown by competent evidence, and in this case there was no evidence to overcome this presumption. King v. Ringling et al., 145 Mo.App. 285; Webb v. Baldwin, 165 Mo.App. 240; Canadian Northern v. Senake, 201 F. 638. (c) The specific charge of negligence in the petition is that an employee of defendant went into the cab of the engine and carelessly and negligently moved the reverse lever of the engine and thereby caused rods and other machinery of the engine to be thrown against the right foot of plaintiff. There was no proof offered in the case, (1) that the reverse lever was moved by anyone; (2) that there was anyone in the cab of the engine; and (3) if anyone were in the cab of the engine that such person was an employee of defendant. There was therefore no evidence to support the charge of negligence in the petition and the demurrer should have been sustained. Beebe v. Transit Co., 206 Mo. 419; Removich v. Construction Co., 264 Mo. 43; Garansson v. Manufacturing Co., 186 Mo. 300; Oglesby v. Railway Co., 177 Mo. 272; Hayes v. Berry, 184 S.W. 913; Yarbrough v. Hammond Packing Co., 231 S.W. 72; Morgan v. Mining Co., 136 Mo.App. 241; Haynie v. Packing Co., 126 Mo.App. 88; Giles v. Railroad, 169 Mo. App 34; Hamilton v. Railroad, 123 Mo.App. 619; Patton v. Railway Co., 179 U.S. 658; Smith v. Penn. Ry. Co., 239 F. 103. (d) It will be conceded from the record in this case that there was no direct evidence that the reverse lever of the engine was moved by anyone. From the facts established by the plaintiff it might be inferred that somebody moved the lever. In other words, it might be presumed from the facts established that the moving of the reverse lever caused plaintiff's injury. But the presumed fact, based upon the established fact, is not sufficient to make a case for the plaintiff. To establish liability the jury must have inferred: First, that somebody moved the reverse lever. second, that this somebody was an employee of the defendant. Third, that the employee at the time was acting within the scope of the duties imposed upon him by his employment. The first of these facts might be inferred from the evidence in the case, but the second and third cannot be inferred or presumed, because to do so is to base one inference upon another inference or one presumption upon another presumption, which cannot be legally done to eke out a case for the plaintiff. This proposition of law is well settled. Hamilton v. Railroad, 250 Mo. 722; Glick v. Railroad, 57 Mo.App. 97; Whitesides v. Railroad, 186 Mo.App. 619-21; Justus v. Railroad, 224 S.W. 79; George v. Railroad, 251 S.W. 729. (2) The court erred in giving instructions 1 and 2 on behalf of plaintiff. (a) The petition charges that it was dangerous to move the reverse lever while plaintiff was under the engine and that fact was known to defendant or could have been known by exercise of ordinary care. Instruction No. 1, purports to cover the whole case, but it does not require the jury to find the necessary fact that defendant knew, or by the exercise of reasonable care could have known, that it was dangerous to move the reverse lever while plaintiff was removing the washout plugs. The instruction was therefore erroneous. State ex rel. v. Ellison et al., 272 Mo. 572; Wojtylak v. Coal Co., 188 Mo. 260. (b) The instruction was also erroneous because there was no evidence offered upon which to submit it. Gunn v. Hemphill Lbr. Co., 218 S.W. 978; Parker v. Drake, 220 S.W. 1000; Ruch v. Pryor, 190 S.W. 1037. See also authorities under point 1 (c). (c) Instruction No. 2, was on the measure of damages and concluded by saying "in all not to exceed $ 5000" this is error especially when a large verdict is returned. Rooker v. Ry. Co., 247 S.W. 1016; Stid v. Railway, 236 Mo. 405; Lessenden v. Railway, 238 Mo. 247; Applegate v. Railway, 252 Mo. 173. (3) Defendant's instruction number 2 should have been given because there was no evidence in the record that it was dangerous to move the reverse lever when the washout plugs were being removed. See authorities under point 1. (4) The verdict of the jury is excessive. After plaintiff was hurt, he continued to work under the same engine at the same place for twenty or thirty minutes; he then worked at another place the remainder of the day. On the next day he sent for a doctor but never got one until the second day after his injury. He was then sent to a hospital and remained in a hospital until January 13, 1924, following his injury on November 17, 1923 (there is no claim for medical or hospital charges). He was earning $ 4.80 per day before his injury. Since his return from the hospital he had been working part of the time. He also testified that he could have had a job with the railroad company if he wanted it but that he did not want it. There were no bones broken and the greatest trouble was erysipelas setting up following the alleged injuries. A verdict for $ 3000 following plaintiff's erroneous instruction number 2 is clearly excessive. Rooker v. Railway, 247 S.W. 1016; Smith v. Railway, 204 S.W. 565; Bragg v. Railway Co., 192 Mo. 365-366.
Henson & Woody, of Poplar Bluff, for respondent.
(1) It is the duty of the master to use ordinary and reasonable care to furnish his servant a safe place in which to work, and it is the master's like duty to keep such place safe while the servant is performing his task. Stobile v. McMahon, 196 Mo.App. 93, 190 S.W. 652; Bender v. Railway, 137 Mo. 250; Koerner v. Car Co., 209 Mo. 141; Bradley v. Railway, 138 Mo. 293; Doyle v. Railway, 140 Mo. 1; McNulty v. Cement Co., 249 S.W. 730; Boden Muller v. Box Co., 237 S.W. 879; Kantz v. Refrigerator Co., 203 Mo.App. 522, 219 S.W. 719; Bequett v. Glass Co., 200 Mo.App. 506, 207 S.W. 852; White v. Montgomery Ward & Co., 191 Mo.App. 268, 177 S.W. 1089; Chulick v. Foundry Co., 199 S.W. 437; Hegberg v. Railway, 164 Mo.App. 514; Kettle v. Car & Fdy. Co., 171 Mo.App. 528; Stuart v. Oil Co., 211 Mo.App. 345, 244 S.W. 970; Coin v. Lounge Co., 222 Mo. 488. (2) This duty on the part of the master cannot be delegated. Beck v. Lbr. Co., 239 S.W. 166; Knorpp v. Wagner, 195 Mo. 637. (3) It was the duty of defendant to warn plaintiff of its intention to move the machinery of the engine under which plaintiff was working before doing so. Wiley v. Coal & Coke Co., 250 S.W. 619; Chulick v. Car & Fdy. Co., 199 S.W. 437. (4) The failure of defendant to take some precaution to guard the safety of plaintiff as far as that could reasonably be done, while he was engaged in working under the engine, constituted gross negligence. Dittrich v. Am. Mfg. Co., 190 S.W. 1006. (5) The liability of a master is measured by his knowledge, either active or constructive, of the surrounding facts and circumstances; and in determining whether the master is negligent, courts do not take into consideration what the servant knew or what the servant did, or what the servant might have done. A master, found negligent, might be relieved of his negligence for some act, conduct or knowledge of the servant; but this would in no wise make the master's negligent act any the less negligent. Husky v. Boiler Co., 192 Mo.App. 370, 181 S.W. 1041; Stuart v. Oil Co., 211 Mo.App. 345, 244 S.W. 970. (6) Direct testimony is not required to show that the injury was caused by the negligence of the master but may be deduced from the proof of such facts as logically create the inference that the negligence proved proximately caused or contributed to the injury. Jaquith v. Fayette R. Plumbing Co., Inc., 254 S.W. 89; Berry v. Coal Co., 253 S.W. 456. (7) An injured person is entitled to recover damages for pain and suffering of body and mind, for future pain of body and mind, the loss of wages sustained, and to future loss of wages if any he is reasonably certain to sustain by reason of the injury. Brickley v. Terminal Ry. Co., 259 S.W. 476, and cases cited, 480. (8) The verdict is not excessive, neither is it the result of passion and prejudice on the part of the jury. Perrett v. Kansas City, 162 Mo. 238; Price v. Const. Co., 191 Mo.App. 395, 177 S.W. 700; Harris v. St. Ry. Co., 168 Mo.App. 336; Sanders v. Quercus Lbr. Co., 187 Mo.App. 408; Roach v. K. C. Rys. Co., 228 S.W. 520; Hurst v. Railway, 280 Mo. 566; Duffy v. K. C. Rys. Co., 217 S.W. 883; Beal v. K. C. Rys. Co., 228 S.W. 834.
Action for damages for personal injury. Verdict and judgment for plaintiff for $ 3000. Defendant appealed.
Plaintiff was working for defendant in the shops at Chaffee, Missouri engaged in the repair of engines. The cause of action alleged in plaintiff's petition is substantially as follows: That he was directed by defendant ...
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