Hawley v. Lusk

• Decision Date: 15 April 1916
• Docket Number: No. 1716.,1716.
• Citation: 184 S.W. 1173
• Parties: HAWLEY v. LUSK et al.
• Court: Missouri Court of Appeals

184 S.W. 1173

HAWLEY v. LUSK et al.

No. 1716.

Springfield Court of Appeals. Missouri.

April 15, 1916.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by H. H. Hawley against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for defendants, and plaintiff appeals. Affirmed.

D. H. Kemp, of Monett, Hamlin & Hamlin, of Springfield, and Barrett & Moore, of Ozark, for appellant. W. F. Evans, of St. Louis, Neville & Gorman, of Springfield, W. P. Sullivan, of Billings, S. E. Bronson, of Ozark, and Mann, Todd & Mann, of Springfield, for respondents.

ROBERTSON, P. J.

Plaintiff seeks to recover damages for alleged personal injuries. At the close of his testimony a verdict was directed for defendants, and he appeals.

The plaintiff and seven others were carrying a steel rail about 25 feet in length and weighing about 800 pounds when plaintiff received his injuries. The rail was carried by the use of tongs, two men to each pair of tongs and on opposite sides of the rail. They had raised the rail, plaintiff had taken one step, and was in the act of taking another, when, to quote:

"There was a heavy lurch came upon me, a heavy weight, and I caught a pain in my groin and in my back and in my left side under my heart. I became blind, and it seemed like I was in the act of falling, when some one taken the weight off of me, and I could not see anything for several minutes. Q. What did you do then; how long did it seem until the weight was lifted? A. I could not say; I was in the act of falling when it seemed like some one lifted it off of me. We carried it all right after they lifted weight off me."

He also testified that there were enough men to handle the rail "if it had been carried off right when we picked it up," and also that it was the duty of each to watch for himself and for the other men to see that all were safe; that, when any of them are in a strained condition, if any one turns the load or throws it down, some one is liable to receive an injury of some kind; that he was standing straight when the lurch fell on him; that the ground was level, and there were no holes or obstructions to stumble over; that a man who was opposite him and carried with the same tongs was a larger man than the plaintiff, and at the time he was not in good condition to do a day's work, and was so crippled in one of his legs that in walking he hopped. The only other man on the job when plaintiff received his injuries who testified stated:

"That after we raised up the rail and straightened we was in the act of moving off, when there was something about the rail; I don't know whether you call it a lurch to represent it; it appeared like some one stepped in a hole or kinda stumbled, and it was heavy an instant or so among the rest of us. * * * It just seemed like some one eased up or stepped down, loosened up on his tongs a little, quit carrying."

The charge in the petition is that plaintiff's fellow servants with whom he was carrying the rail "negligently and carelessly and without warning to the plaintiff suddenly dropped their part of the weight of said rail on plaintiff, whose strength was inadequate to the task of sufficiently supporting the weight then thrown on him." The only question for decision in this case is whether or not by making every inference of fact in favor of the plaintiff justified by the evidence there is any substantial proof of negligence. In considering this question it is essential that we appreciate the conditions and situation under which plaintiff was performing his duties. The rail he and his fellow workmen were carrying gave them an average weight of 100 pounds each. In order that the weight should be uniform at all times the movements of his fellow workmen must necessarily have been in complete harmony with his. This we know to be an impossibility. We also know that in carrying a heavy load of this character and in this manner the greatest irregularity naturally occurs when raising and steadying for the...