Hite v. St. Joseph & G. I. Ry. Co.

Citation225 S.W. 916
Decision Date02 December 1920
Docket NumberNo. 21101.,21101.
CourtUnited States State Supreme Court of Missouri
PartiesHITE v. ST. JOSEPH & G. I. RY. CO.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by William G. Hite against the St. Joseph & Grand Island Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for appellant.

Strop & Mayer, of St. Joseph, for respondent.

RAGLAND, C.

This is a suit under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for personal injury alleged to have resulted from a negligent failure to furnish a reasonably safe appliance. The injury occurred February 1, 1918; the suit was commenced April 18, 1918; and the judgment from which this appeal was taken was rendered June 8, 1918.

On the date first mentioned, the defendant was an interstate carrier, operating a line of railroad from St. Joseph, Mo., to Grand Island, Neb., and on that date it had certain of its employés, including the plaintiff, engaged in repairing an old bridge on its main line near Herkimer, Kan. The repair consisted of the construction of a new bent to support the bridge. The road at that point ran east and west, and the support then in the course of construction extended north and south. The piles, four in number, had been driven, and it remained for them to be pulled into line at the top, the tops sawed off, and the cap placed on them. A scaffold was constructed in the following manner: A stringer was suspended from each end of the bridge by ropes, each of these stringers was nailed in the center to an outside pile, and two 2 & times; 12 boards, 16 feet in length, were laid on the stringers, one on each side of the row of piling. The boards were about 2½ feet apart and extended at each end from 14 to 16 inches beyond the stringer. The piles were approximately 11 inches in diameter. Plaintiff testified that he helped suspend the stringers, then got down off the bridge onto the boards that had been laid on them, and nailed the last board at the south end to the stringer; that a fellow workman likewise nailed the west board at the south end; and that the foreman in charge then sent plaintiff to prepare some straight edges, saying at the time that they would first pull the piles in and then nail the north ends of the scaffold boards. The piling was pulled into line with an appliance called a "turnbuckle," operated from the center of the bridge. Whether it was necessary for any of the men to stand on the scaffold during this operation is not clear. It does appear, however, that the main purpose of the scaffold was to furnish the workmen a place on which to stand while sawing off the tops of the piling and while lifting the cap.

When the piles were ready to receive the cap, which weighed approximately 1,000 pounds, it was laid along the west side of them, a rope was made fast around each end, and it was hoisted by men on the bridge pulling with the ropes and by those on the scaffold lifting after it had been raised above the scaffold. The north ends of the scaffold boards were never nailed, and, according to plaintiff, while he was standing at the north end of the scaffold facing south, with his right foot on the stringer next to the pile, his left foot on the north end of the east scaffold board, his left arm around the pile, and his right under the cap which was still on the west side of the piling and which he was helping lift, the east scaffold board slipped further away from him, causing him to lose his balance and fall. The distance from the scaffold to the creek bank or bed was 10 or 12 feet, and the ground at the time was frozen. The injuries received by plaintiff as a result of the fall will be adverted to later.

Defendant introduced evidence which tended to show that plaintiff knew that the north ends of the boards were not nailed, that the board on which he claims to have been standing did not in fact slip, and that his fall was occasioned by his attempt to step from one side of the scaffold to the other in which he lost his footing and stepped off the board. Defendant also introduced evidence tending to show that it was not the custom or practice of the defendant, the Burlington, the Santa Fé, and the Great Western Railroad Companies, in building scaffolds to be used as was the one in controversy, to nail the scaffold boards. The witnesses who testified on this subject said that, if the boards were not nailed, only two would be required, one on each side of the piling, because they could be moved close to the piling or further away to meet the different exigencies of the work as it progressed; otherwise more boards would be needed. They also said that during their several experiences as railroad bridge carpenters, varying from a few months to five years, they had never seen one of these unnailed boards slip while the scaffold was in use.

In rebuttal, plaintiff offered the testimony of witnesses who had never had any experience in the building of railroad bridges, but who were familiar, according to their testimony, with the methods and practices employed generally in all kinds of building construction, including that around and in connection with piers similar to the construction in question. Over the objection of defendant, they were permitted to testify that it was the general practice and custom of those engaged in all such work in building scaffolds for uses and purposes similar to that of the one in controversy to nail the boards to keep them from slipping. Defendant objected to this testimony on the ground that it was not in rebuttal, in that it did not pertain to a custom or usage followed by railroads, or in the performance of the same class of work.

The petition charges as negligence the failure to nail the scaffold boards, and it alleges that such failure was the proximate cause of plaintiff's injury. The answer admits:

"That the plaintiff sustained some injury at or about the time and place in his petition mentioned and while employed by defendant, as controlled and operated by the United States government."

It denies the other allegations of the petition and pleads assumption of risk and contributory negligence.

Among other instructions asked by plaintiff, the court gave the following:

"(4) The court instructs the jury that you are the sole judges of the credibility of the witnesses and the weight you will give to their testimony. In determining the credibility of any witness and the weight which you will give to his or her testimony, you "should take into consideration the interest, if any, such witness may have in the result of the trial, as shown by the evidence, their feeling for or against either party to the suit, as shown by the evidence, the probability or improbability of the statements made by the witness, the reasonableness or unreasonableness of such statements, the appearance and manner of the witness upon the stand while testifying, the inclination of the witness to speak frankly or otherwise, and the opportunity such witness may have bad, as shown by the evidence, to be informed upon the questions concerning which such witness gave testimony. In determining the credibility and weight of the testimony, you should apply your common experience in the affairs of life, and give to the testimony of each witness just such weight and credit as, under all the facts and circumstances in evidence, you deem it fairly entitled to receive. If, upon a consideration of all of the evidence, you believe that any witness has willfully sworn falsely to any material fact in issue, you are at liberty to disregard the whole or any part of such witness' testimony.

"(5) The court instructs the jury that by the term `preponderance,' as used in these instructions, is not meant the greater number of witnesses testifying, but is meant that evidence which is the more satisfactory and convincing to the minds of the jury,"

In the instruction on the measure of damages the court at plaintiff's instance instructed the jury that in assessing his damages they should take into consideration, among other things, "his loss, if any, of wages on account of said injuries, and the impairment, if any, of his ability to earn a livelihood."

The jury returned a verdict for plaintiff, assessing his damages at $10,000. From the judgment rendered in accordance therewith, defendant appeals.

Appellant seeks a reversal of the judgment on the following assignments: (1) Under the pleading and evidence the defendant was entitled to a directed verdict; (2) the evidence pertaining to a practice or usage obtaining generally in building scaffolds for construction work was improperly received in rebuttal; (3) plaintiff's main instruction was erroneous in ignoring the defense of assumption of risk; (4) plaintiff's instruction No. 5 was misleading and prejudicial; (5) the instruction on the measure of damages was erroneous in directing the jury to consider the loss of wages and the impairment of earning capacity; (6) the verdict is excessive; and (7) the judgment operates to take defendant's property without due process of law.

1. The principal reason urged by appellant in support of its contention that the court should have peremptorily directed a verdict in its favor is that the United States was in possession of appellant's road and was operating it at the time of plaintiff's injury, and that as an incident to such operation the United States, and not appellant, was making the repairs in which plaintiff was engaged when hurt. Stated in another way, the contention is that neither plaintiff nor his fellow workmen, in repairing the railroad bridge, were in the employ or under the control of appellant; hence, as between the appellant and plaintiff, the relation of master and servant did not exist, and, there being nothing in the situation to invoke the rule of respondent superior, appellant cannot on any theory of...

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