Harrison v. American Car & Foundry Co.

• Decision Date: 07 June 1927
• Docket Number: No. 19140.,19140.
• Citation: 296 S.W. 214
• Court: Missouri Court of Appeals
• Parties: HARRISON v. AMERICAN CAR & FOUNDRY CO.

296 S.W. 214

HARRISON v. AMERICAN CAR & FOUNDRY CO.

No. 19140.

St. Louis Court of Appeals. Missouri.

June 7, 1927.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Russell Harrison against the American Car & Foundry Company. Judgment for plaintiff was affirmed by the Court of Appeals (280 S. W. 60), and the Supreme Court quashed the record of the Court of Appeals (288 S. W. 13). On reargument in with the mandate of the Supreme Court. Reversed and remanded.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

Moldafsky & Tennenbaum, of St. Louis, for respondent.

BECKER, J.

This case on its first appeal was reversed and remanded by this court on account of error in instructions given on behalf of plaintiff. 254 S. W. 559. The case was retried below, again resulting in a judgment for plaintiff, which judgment this court affirmed on appeal. 280 S. W. 60. Our Supreme Court, however, granted a writ of certiorari and quashed said record of this court. 288 S. W. 13. Accordingly, this case has been reargued and resubmitted in accordance with the mandate of the Supreme Court.

We find little material change in the testimony at the second trial of the case from that adduced at the first. We therefore do not again set out the testimony here, but refer those interested to the statement of facts as they appear in 254 S. W. 559.

We find no merit in the contention here sought to be made that the petition does not state a cause of action. This case originated before a justice of the peace, and the petition is attacked for the first time on appeal. If the attack upon the petition filed in the justice court was merely that the petition was defective, the point could not be raised here for the first time on appeal (Wegner v. Gray, 145, Mo. App. 453, 122 S. W. 755; Jones v. St. Joseph Gazette Co. [Mo. App.] 285 S. W. 771), but the point made here is that the petition is wholly defective and fails to state a cause of action, and such an attack may be raised for the first time on appeal. See Rundelman v. Boiler Works, 178 Mo. App. 644, 161 S. W. 609, and cases therein cited.

In light of this situation we rule that the petition must be held to state a cause of action. The petition specifically charges the defendant was guilty of negligence in that it failed to furnish this plaintiff "with a reasonable and safe place to work in," to wit, that in and about the premises of this defendant other rails and iron and steel were left lying on the ground. The petition contains the further allegation that the defendant's foreman was guilty of negligence in directing this plaintiff and other employees who were carrying the aforesaid rail "to drop or throw the said rail," which he, together with other employees, was carrying, "upon and against the rail herein mentioned so lying on the ground, when he knew, or by the exercise of ordinary care could have known, that it was likely to strike the said rail lying on the ground and rebound and strike and injure this plaintiff." The petition charges that "as a direct result of the carelessness and negligence of this defendant's foreman, plaintiff's right foot was seriously injured."

An examination of the record before us discloses that the trial court erred in overruling defendant's demurrer offered at the close of the case.

As to the first assignment of negligence attempted to be set up in plaintiff's petition, we note that whilst the rule is that the master must exercise ordinary care to furnish his servant a reasonably safe place in which to work, the petition alleges that the master failed "to furnish this plaintiff with a reasonable and safe place in which to work." Be that as it may, when we examine the proof adduced by plaintiff in support of this assignment of...