Haviland v. Kansas City, Pittsburg & Gulf Railroad Company

• Decision Date: 18 February 1903
• Parties: HAVILAND v. KANSAS CITY, PITTSBURG & GULF RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

72 S.W. 515

172 Mo. 106

HAVILAND v. KANSAS CITY, PITTSBURG & GULF RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

February 18, 1903

Appeal from Barton Circuit Court. -- Hon. H. C. Timmonds, Judge.

Reversed and remanded (with directions).

Lathrop Morrow, Fox & Moore for appellant.

(1) Defendant's demurrer to the evidence should have been sustained. Worlds v. Railroad (Ga.), 25 S.W. 464; Ferguson v. Cotton Mills (Tenn.), 61 S.W. 53; Cagney v. Railroad, 69 Mo. 424; Dunlap v. Mfg Co. (Mass.), 18 N.E. 599; Railroad v. Rogers, 57 F. 378; Railroad v. Drake, 53 Kan. 1; Railroad v. Moore, 49 Kan. 617; Walsh v Railroad (Minn.), 8 N.W. 145; Fremont Brewing Co. v. Hansen (Neb.), 91 N.W. 279; Steinhauser v. Spraul, 127 Mo. 541; Watson v. Coal Co., 52 Mo.App. 371; Keegan v. Kavanaugh, 62 Mo. 232; Railroad v. Mitchell, 18 S.E. 290; Ames v. Railroad (Ind.), 35 N.E. 117; Stone Co. v. Wolf (Ind.), 38 N.E. 52; Kelley v. Railroad, 5 Am. and Eng. R. R. Cas. 469; Rush v. Railroad, 136 Kan. 137; Larson v. Railroad, 44 Am. and Eng. R. R. Cas. 529; Smith v. Railroad, 41 Am. and Eng. R. R. Cas. 289; Swanson v. City (Ind.), 33 N.E. 1003; Weeks v. Freemont Mill Co. (Wash.), 29 P. 215; Hart v. Naumburg (N. Y.), 25 N.E. 385; Railroad v. Ross (Ky.), 56 S.W. 14; Railroad v. Spellman (Tex.), 34 S.W. 298; Railroad v. Lempe, 56 Tex. 19. (2) The court committed no error in the exclusion of evidence. Benjamin v. Railroad, 133 Mo. 274; Koons v. Railroad, 65 Mo. 592; Hurst v. Railroad, 163 Mo. 309; Lee v. Knapp, 155 Mo. 610; Gutridge v. Railroad, 94 Mo. 458; Goble v. Kansas City, 148 Mo. 477; Dammann v. St. Louis, 152 Mo. 200; Brown v. Plank Road Co., 89 Mo. 155; King v. Railroad, 98 Mo. 240; Eubank v. City, 88 Mo. 655; Gavisk v. Railroad, 49 Mo. 276; Madden v. Railroad, 50 Mo.App. 666; Hoffman v. Railroad, 51 Mo.App. 273; Railroad v. Clouch, 2 Kan.App. 728; Graham v. Railroad, 139 Pa. St. 161; Bergen v. Traction Co., 41 A. 837; Atchison v. Henry, 57 Kan. 154; Railroad v. Modesett, 124 Ind. 212; McCloskey v. McCloskey, 69 Mo. 199.

Cole & Burnett for respondent.

(1) The court committed error in excluding and striking out competent evidence, tending to show negligence on the part of defendant. The testimony stricken out was that of an old and experienced railroad man, who was familiar with the different ways of loading steel rails, and by his knowledge and experience knew how many men were required to load the steel rails in the way they were being loaded when plaintiff was injured, with reasonable safety to the men engaged therein. An expert is said to be one who, by practice or observation, has become experienced in any science, art or trade. It may be laid down as a general rule that the opinion of a witness possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without assistance. Goins v. Railroad, 47 Mo.App. 181; Davidson v. Railroad, 34 Minn. 53, 24 N.W. 324; Cook v. Railroad, 57 Mo.App. 479; Cole v. Clarke, 3 Wis. 323; Benjamin v. Railroad, 50 Mo.App. 609; Eyerman v. Sheehan, 52 Mo. 221; Johnson v. Railroad, 96 Mo. 348; Fitts v. Railroad, 59 Wis. 323; s. c., 18 N.W. 186; Armstrong v. Railroad, 45 Minn. 85; s. c., 47 N.W. 459; Boettger v. Iron Co., 124 Mo. 104; Railroad v. Groethe, 31 S.W. 197; Betts v. Railroad, 60 N.W. 623; s. c., 92 Iowa 343. (2) Defendant's demurrer to the evidence should have been overruled. And the court's order setting aside the nonsuit and granting new trial was proper. Thorpe v. Railroad, 89 Mo. 663; McMullen v. Railroad, 60 Mo.App. 231; Fogus v. Railroad, 50 Mo.App. 250; Doyle v. Trust Co., 140 Mo. 15; Bender v. Railroad, 137 Mo. 240; Young v. Webb City, 150 Mo. 341; Rine v. Railroad, 100 Mo. 228; Baum v. Fryrear, 85 Mo. 151; Keown v. Railroad, 141 Mo. 87; Herdler v. Buck Stove Co., 136 Mo. 3.

OPINION

MARSHALL, J.

This is an action for five thousand dollars damages alleged to have been sustained by the plaintiff, employee of the defendant, while engaged, as a member of a section gang, in loading steel rails on to a flat car, caused it is averred, by the employment, by defendant, of an insufficient number of men to do the work. The injury is said to have resulted from the plaintiff overexerting himself, in consequence of which he strained his back. The negligence charged in the petition is the employment of only four men, where eight are alleged to have been necessary. The answer is a general denial, and a plea of assumption of risk.

At the close of the plaintiff's case the court sustained a demurrer to the evidence, and also sustained a motion to strike out the testimony of a witness, called as an expert, and in consequence the plaintiff took a nonsuit with leave. Thereafter, the court set aside the nonsuit and granted the plaintiff a new trial, assigning as ground therefor the sustaining of the demurrer to the evidence and of the motion to strike out the expert testimony. From this order the defendant appealed.

The case made by the plaintiff is this:

Prior to the alleged accident, the plaintiff was an able-bodied man, thirty-five years of age, and for the preceding three months had been in the employ of the defendant as a section hand, taking up old rails and putting in the new ones, and had previously assisted in taking up and piling the rails hereinafter spoken of. The petition avers, and the evidence shows, that on a prior occasion, three or four weeks before the accident, he had assisted in loading seventeen steel rails, like those he was loading on this occasion, on to a flat car; that there were six men then engaged in such work, and that they loaded them by lifting one end of the rail from the ground and resting it on the top of the flat car, putting a pick handle in the standard slots on the side of the car to prevent the end so lifted from sliding off of the car, and then lifting the other end of the rail from the ground and placing it on the top of the flat car. On the day of the accident, a section gang composed of seven men were engaged in loading rails on to a flat car. The rails were thirty feet long and weighed six hundred pounds each. The top of the flat car was four and a half feet above the top of the railroad track, and the top of the track was eighteen to twenty inches higher than the ground on which the rails were piled. The gang constructed an incline from the ground to the top of the flat car, by taking two steel rails about fifteen feet long, tapering at one end, and rested one end on the top of the car and the other end on the ground, or on a cross-tie, and then greased the skids to make the rails slide easily. Then five of the seven men would take a rail and slide or push it up the incline, two standing at either end and one at the middle of the rail, and the two remaining members of the gang, who were stationed on the top of the flat car, would receive the rail that was thus pushed up the incline by the five men, and would put it in a proper place on the car. There were some fifty or sixty rails to be loaded. When about one-half had been loaded, one of the men who was on the top of the car, "pinched his finger" and quit, and one of the five men who had been helping to push the rails up the incline, took the place on the car, of the hurt man. The remaining six men continued the work, four shoving up the rails and two putting them in place. The plaintiff all the while was engaged in the work of shoving. While so engaged with the other three shovers, the plaintiff claims he strained himself. He told one of the fellow-servants of it at the time, but neither then nor afterwards did he say anything to the foreman, who was present, about hurting himself, nor about the gang being insufficient; on the contrary, even after he says he was hurt, he continued in the work until all the rails were loaded, and also helped to load a lot of cross-ties, and never said anything to the foreman about being hurt, nor did he suffer any further strain. The plaintiff called James McCaliment as an expert. He qualified by showing that four years before he had assisted in loading twenty-five cars with rails by means of skids, as was done in this case, and then said it would require ten men to so load such rails; that usually sixteen to eighteen are employed to load rails on a car, and that instead of skids the men pick up the rails and place them on the car. He also said that an average man can lift two hundred pounds, and hold it up for a minute.

This is the expert testimony that was stricken out by the court, and which ruling is assigned as a ground for granting a new trial.

I.

The first question in this case is whether the trial court erred in sustaining a demurrer to the evidence.

A master owes his servant a duty to furnish him a reasonably safe place and reasonably safe and suitable appliances for doing his work. When the work requires men to do it, the men engaged therein are classed as appliances. [Wood on Railroads, p. 1758; Thorpe v. Railroad, 89 Mo. 650.] This duty, however, does not make the master an insurer of the servant. [Grattis v. Railroad, 153 Mo. 380; Minnier v. Railroad, 167 Mo. 99.] On the other hand, the servant assumes the risks that are ordinarily incident to the business. The servant is not obliged to quit because the master has failed in his duty, if he reasonably believes that by the exercise of proper care and caution he can safely use the appliances furnished, but if the danger of using such appliances is obvious, patent, or such as to threaten immediate injury, then the servant assumes the risk in using them, or in remaining in the master's service. [Minnier v. Railroad, 167 Mo. 99, and cases cited.]

Apply these principles of law to the case made by...