Johnson v. Metropolitan St. Ry. Co.

• Citation: 104 Mo. App. 588,78 S.W. 275
• Court: Court of Appeal of Missouri (US)
• Decision Date: 04 January 1904
• Parties: JOHNSON v. METROPOLITAN ST. RY. CO.<SMALL><SUP>*</SUP></SMALL>

78 S.W. 275

104 Mo. App. 588

JOHNSON v. METROPOLITAN ST. RY. CO.^*

Court of Appeals at Kansas City, Missouri.

January 4, 1904.

MASTER AND SERVANT—PERSONAL INJURIES— NEGLIGENCE—PLEADING—GENERAL CHARGE — EVIDENCE — SUFFICIENCY — ACCIDENT — PRESUMPTION—FELLOW SERVANTS—STREET RAILWAYS.

1. In an action against a master for personal injuries to a servant, a general charge of negligence is sufficient as against an objection first made on trial.

2. In an action against a master by a servant for personal injuries, evidence that a crowbar used by other servants fell through the floor to the next story, and struck plaintiff on the head, was sufficient to cast on defendant the necessity of showing that the accident was not the result of negligence.

3. Plaintiff, who was engaged in hauling away rubbish made by carpenters in their work, was a fellow servant with the carpenters, and could not recover for injuries inflicted by their negligence.

4. A street railway is not within the provisions of the fellow-servant statute applicable to railroads, whereby the master of common servants is made answerable for their negligence to each other.

5. Where an action was against the Metropolitan Street Railway Company, and the petition charged that such company was a common carrier, and a corporation organized and existing under the laws of the state, owning and operating street and electric railways between certain points, and that plaintiff was employed by defendant in hauling trash from its power house, there was sufficient in the case to show that defendant was a street railway company, and not within the fellow-servant statute applicable to railroads, though there was no direct and affirmative proof of such fact.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by Arthur W. Johnson against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Jno. H. Lucas, for appellant. Joseph S. Rust, for respondent.

ELLISON, J.

This is an action for personal injury received by plaintiff, who was an employé of defendant. The judgment in the trial court was for plaintiff. The defendant had carpenters employed in the story next above the ground floor of its power house, taking up and relaying floors. Plaintiff, a negro man, was engaged, with his horse and cart, in hauling out the trash made by the carpenters. It appears that the carpenters used, among other implements, a heavy iron bar, called a "crowbar," with which they prized up the old floor. This bar fell from the floor above, and struck plaintiff "on the head, and glanced off." It does not appear from the evidence how it came to fall, or whether it was at the moment being used by the carpenters above. Nor does the petition charge how it happened. The pleader has rested content by simply charging, generally, that defendant's servants negligently caused it to fall.

1. Defendant objected to any evidence being received for the reason stated—that the petition made only a general charge of negligence, and therefore stated no cause of action. The case of Waldhier v. Ry. Co., 71 Mo. 516, is cited to support the point. An expression is used in that case which supports defendant. But it has never been regarded as authoritative. The point decided in that case was that, when a petition charges specific acts of negligence as the ground of action, a recovery cannot be had for acts not charged. Such was stated to be that decision in Schneider v. Ry. Co., 75 Mo. 295, where it was held, in an opinion by the same judge who wrote that in the Waldhier Case, that a general charge of negligence was sufficient. And it was so held in Goodwin v. Ry. Co., 75 Mo. 76; Mack v. Ry. Co., 77 Mo. 232; Le May v. Ry. Co., 105 Mo. 361, 16 S. W. 1049. In cases later than these, it seems to be held that, if there is objection at the "proper time before trial," such petition would be held insufficient. Conrad v. De Montcourt, 138 Mo. 311, 325, 39 S. W. 805. In Foster v. Ry. Co., 115 Mo. 165, 177, 21 S. W. 916, it is said that a general charge of negligence is good "after answer" (italics ours). So, therefore, if we are to regard the Supreme Court as now holding that such general charge is insufficient if objected to before the trial, defendant's point is still not tenable, since its objection was first made after the trial opened.

2. Defendant next objects to the sufficiency of the proof of plaintiff's case—that it is not shown that the fall of the bar was caused by negligence. Looking at the entire evidence, it appears that the carpenters were prying up a board or joist when the bar fell. The only evidence is that it fell and struck plaintiff on the head. There is nothing to show why or how it fell. We believe such evidence sufficient to cast upon defendant the necessity of explaining. Unless defendant can account for the fall of the implement in such way as to exculpate itself, it will be held to have done the act negligently. We stated the rule to be, in Shuler v. Ry. Co., 87 Mo. App. 618, 623, "that when an accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, it will be presumed to be negligent." In the case of Dougherty v. Mo. Pac. Ry. Co., 9 Mo. App. 478, Judge Thompson has gathered some cases which fully support what we have said: "Thus a...