Hogue v. St. Louis-San Francisco Ry. Co.

• Decision Date: 23 September 1929
• Docket Number: No. 4571.,4571.
• Parties: HOGUE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

20 S.W.2d 301

HOGUE v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4571.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Action by L. B. Hogue against the St. Louis-San Francisco Railway Company. Judgment for defendant. From an order granting new trial, defendant appeals. Affirmed.

E. T. Miller, of St. Louis, and Mann & Mann, of Springfield, for appellant.

Neale & Newman and Warren M. Turner, all of Springfield, for respondent.

BAILEY, J.

This is an appeal by defendant from an order sustaining a motion for new trial in an action for damages on account of personal injuries. The appeal first reached this court during the October term, 1928, at which term this court rendered an opinion transferring the cause to the Supreme Court. See Hogue v. St. Louis-San Francisco Railway Co., 12 S.W.(2d) 103. On motion, the case was remanded to this court and our previous opinion quashed in a memorandum opinion by the Supreme Court. The case, therefore, is now before us on its merits.

Plaintiff filed his petition setting up that he was, on and before September 11, 1925, in the employ of defendant railroad company as a common laborer at its shops, located in the city of Springfield, Mo., along with other common laborers, among them being Joe Hogue, plaintiff's son; that plaintiff and his said son were working at the same kind of work, under the superintendence of the same foreman; that at the time and place plaintiff and his son were engaged in picking up pieces and bits of metal, wood, felt, and other materials; that plaintiff was standing beside defendant's track, stoopng over, and picking up certain material to carry away; that in front of him was a piece of felt which had been used for car lining; that said felt had some other waste material lying partly on it, so that it was "slightly held thereby"; that the said Joe Hogue well knew, or by the exercise of ordinary care should have known, that said felt was covered with dirt, dust, gravel, and pieces of iron; that "the said Joe Hogue was in position where he could and did see that this plaintiff was facing and stooping slightly over the piece of felt; that, nevertheless, he suddenly, and without warning to plaintiff, negligently and carelessly pulled the said piece of felt up from the ground with great force and violence, releasing it from the articles resting upon it and causing it to flip or throw the said dirt, gravel and pieces of iron and steel in plaintiff's face and in both of his eyes; that plaintiff had no warning of the intention of the said Joe Hogue to suddenly pull and lift the said felt from the ground as aforesaid, and that the said dirt, gravel and pieces of iron and steel flew directly into his eyes, and especially into his left eye." The petition further charged negligence in that defendant's foreman refused to permit plaintiff to obtain medical attention. The total loss of said eye was also alleged, and plaintiff prayed damages in the sum of $7,400.

The answer pleaded assumption of risk and contributory negligence. The sufficiency of the petition to state a cause of action was not challenged.

Upon trial to a jury the court directed a verdict for defendant, but thereafter sustained plaintiff's motion for new trial. This motion set up, among other things, that the verdict was against the weight of the evidence, and that the court erred in sustaining the demurrer to the evidence. The trial court failed to indicate any reason for sustaining the motion for new trial, as required by law. We may assume, however, that the court granted the new trial because it believed there was a question of fact for the jury. In reviewing this case it is our duty to affirm the judgment unless, under the evidence, no verdict for plaintiff could be permitted to stand. The rule is thus stated: "If a new trial is granted to either plaintiff or defendant, and there is substantial evidence upon which a verdict can rest in favor of the party to whom the new trial is granted, this court will not interfere with the order granting a new trial; but, on the other hand, if there is no substantial evidence in the record upon which a verdict for the party obtaining the new trial can rest, then this court will interfere, and set aside the order for a new trial, and reinstate the verdict." Sutter v. St. Ry. Co. (Mo. Sup.) 188 S. W. 65, loc. cit. 67. We shall follow that rule in the case at bar.

The evidence is brief, since plaintiff and his son, Joe Hogue, were the only witnesses to the accident. The record shows that plaintiff and his said son were in defendant's employ and had for some time been engaged in all kinds of work, such as "trimming up and cleaning tracks and tearing down old cars and packing iron." At the time of the accident they had been ordered to clean up and burn some trash piles which had accumulated on what is known as the "rip track." This trash consisted of pieces of board, old tar paper, and all kinds of rubbish that comes off of cars. Plaintiff testified the manner of the accident was as follows:

"I was stooped over and starting to pick up a lot of trash of some description, and about that time the boy walked around in front of me, and all at once he flashed up, he flipped up a piece and filled my eyes full of rubbish, dirt and all kinds of stuff.

"Q. Now, Mr. Hogue, did it fill one eye or both of your eyes? A. It filled both of my eyes.

"Q. Was there anything said at that minute? A. Well, I told Joe he filled my eyes full of trash, and I throwed my stuff down and I raised up and told him to look in my eyes, and he looked in my eyes and took a handkerchief and opened my eyes up and got a lot of stuff out."

In his evidence on cross-examination plaintiff went into greater detail. He testified that he started to work at 8 o'clock that morning, working alone with his son Joe; that he and Joe had done the same kind of work often; that they tear down the cars and throw the loose material onto the ground and the men pick it up; that there would be a great deal of dirt and small bits mixed up in this material; that they had their backs to the truck or car and that Joe came around the right-hand side; that "the first I remember Joe doing, he was stooped up there; I had some stuff, and I had it up; fixing to get it up, and he immediately gave that piece of felt a jerk, and the first thing I knew it filled my eyes full." His examination continued as follows:

"Q. What was it he jerked? A. A piece of an old felt, old felting that goes in between the cars, between them freezing cars, just a strip of it.

"Q. Now, Mr. Hogue, you never saw that piece of felt until after you got this stuff in your eye? A. Well, I don't know as I noticed it until it jerked; that is the first.

"Q. Until he got it in your eyes? Answer my question — didn't you see the piece of felt after you got this in your eye, and you looked and saw what it was? A. No, sir.

"Q. What do you mean when you say he jerked it? Did he lift it up? A. He give it a jerk up that way (indicating) and the whole thing hit me in the face.

"Q. The dirt and stuff that was on it? A. Yes sir.

"Q. What was he doing with it? A. Well, he started to get it and burn it.

"Q. Do you know whether that — do you know whether it was caught in anything? A. I think it was hung under my load.

"Q. And when he started to lift it up, did it tear loose from your load? A. It took it right out from under my load.

"Q. He took it out from under your load, and the dirt and stuff that was on it flew up into the air? A. Yes, sir, the piece hit me in the face.

"Q. Piece of what? A. Piece of the old felt, dirt and all struck me in the face.

"Q. How big a piece of felt? A. It was five or six feet long and a foot and a half wide.

"Q. You mean the same piece he had hold of hit you in the face? A. Yes, sir."

Joe Hogue testified as follows:

"Q. Tell the jury how you did that and what you were doing? A. We were cleaning and piling rubbish away from the rip track, the stuff that comes off of these old cars; and my father stooped down to pick up a load, and I caught hold of a long piece of this felt and give it a jerk to take it to the other pile, and when I jerked it up the dirt and stuff flew up in my father's face and filled his eyes."

On cross-examination he testified that:

"There is a great deal of trash and dirt in connection with tearing down the cars. A great deal of material would settle on the old cement and lumber and material from the car, that couldn't be helped, just dirty rusty cars. You couldn't help this dirt from being on the piece of felt, that was just natural. I didn't have any intention of injuring anybody when I picked up the piece of felt.

"Q. When you picked it up, it was caught under something or other? A. I jerked it up.

"Q. Why did you jerk it up? A. I just jerked it up.

"Q. Was it caught under something? A. I couldn't say.

"Q. In order to get it up, didn't you have to jerk on it and pull it loose from something? A. I caught hold of it and jerked it up.

"Q. Why? A. No answer.

"Q. How high did you jerk it? A. It went up against my father's face; I don't know how high.

"Q. It went into your father's face? A. The whole business.

"Q. He was standing near you? A. Stooped over out in front of me.

"The only way to get this piece of felt up, you knew the piece of felt was caught under something? A. No, I didn't know it was caught under, or wasn't caught under."

There are certain well-recognized principles of law involved in this case upon which plaintiff and defendant agree, although they disagree as to their application. Defendant states in its brief that when specific acts of negligence are alleged in the petition they form the only basis of recovery, citing Fink v. Ry., 161 Mo. App. 314, 143 S. W. 568, 572; Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450, 452, and other cases. In the Haake Case, the Court of Appeals, after stating the...