Johnson v. Metropolitan St. Ry. Co.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtEllison
Citation104 Mo. App. 588,78 S.W. 275
PartiesJOHNSON v. METROPOLITAN ST. RY. CO.<SMALL><SUP>*</SUP></SMALL>
Decision Date04 January 1904
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,...

To continue reading

Request your trial
20 practice notes
  • McAdoo v. Met. Life Ins. Co., No. 24161.
    • United States
    • Court of Appeal of Missouri (US)
    • December 7, 1937
    ...may take judicial notice of geographical facts. [Reineman v. Larkin, 222 Mo. 156, 121 S.W. 307; Johnson v. Metropolitan Street Ry. Co., 104 Mo. App. 588, 78 S.W. 275.] We think the testimony of plaintiff, if believed by the jury, and it evidently was, would justify the inference that she ma......
  • Tate v. Western Union Telegraph Co., No. 30035.
    • United States
    • Missouri Supreme Court
    • December 1, 1934
    ...falling of the wire. Kean v. Smith-Reis Piano Co., 206 Mo. App. 170; Gibbs v. Light & Power Co., 142 Mo. App. 19; Johnson v. Ry. Co., 104 Mo. App. 588; Gallagher v. Edison Co., 72 Mo. App. 576; Jackson v. Butler, 249 Mo. 360; Sackewitz v. Biscuit Co., 78 Mo. App. 144; Briggs v. Oliver, 4 Hu......
  • Wyldes v. Patterson
    • United States
    • United States State Supreme Court of North Dakota
    • July 2, 1915
    ...of a building where servants were at work, and fell upon the plaintiff, who was working below (Johnson v. Metropolitan St. Ry. Co., 104 Mo. App. 588, 78 S. W. 275); where a servant at her place of work is injured by the fall of a barrel from a platform above her (Armour v. Golkowska, 202 Il......
  • Indiana Union Traction Co. v. Long, No. 21,916.
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1911
    ...106 Mo. App. 129, 79 S. W. 1176;Godfrey v. St. Louis, etc., Co., 107 Mo. App. 193, 81 S. W. 1230;Johnson v. Metropolitan, etc., Co., 104 Mo. App. 588, 78 S. W. 275;McLeod v. Chicago, etc., Co., 125 Iowa, 270, 101 N. W. 77;Riley v. Galveston, etc., Co., 13 Tex. Civ. App. 247, 35 S. W. 826;Fa......
  • Request a trial to view additional results
22 cases
  • McAdoo v. Met. Life Ins. Co., No. 24161.
    • United States
    • Court of Appeal of Missouri (US)
    • December 7, 1937
    ...may take judicial notice of geographical facts. [Reineman v. Larkin, 222 Mo. 156, 121 S.W. 307; Johnson v. Metropolitan Street Ry. Co., 104 Mo. App. 588, 78 S.W. 275.] We think the testimony of plaintiff, if believed by the jury, and it evidently was, would justify the inference that she ma......
  • Tate v. Western Union Telegraph Co., No. 30035.
    • United States
    • Missouri Supreme Court
    • December 1, 1934
    ...falling of the wire. Kean v. Smith-Reis Piano Co., 206 Mo. App. 170; Gibbs v. Light & Power Co., 142 Mo. App. 19; Johnson v. Ry. Co., 104 Mo. App. 588; Gallagher v. Edison Co., 72 Mo. App. 576; Jackson v. Butler, 249 Mo. 360; Sackewitz v. Biscuit Co., 78 Mo. App. 144; Briggs v. Oliver, 4 Hu......
  • Wyldes v. Patterson
    • United States
    • United States State Supreme Court of North Dakota
    • July 2, 1915
    ...of a building where servants were at work, and fell upon the plaintiff, who was working below (Johnson v. Metropolitan St. Ry. Co., 104 Mo. App. 588, 78 S. W. 275); where a servant at her place of work is injured by the fall of a barrel from a platform above her (Armour v. Golkowska, 202 Il......
  • Indiana Union Traction Co. v. Long, No. 21,916.
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1911
    ...106 Mo. App. 129, 79 S. W. 1176;Godfrey v. St. Louis, etc., Co., 107 Mo. App. 193, 81 S. W. 1230;Johnson v. Metropolitan, etc., Co., 104 Mo. App. 588, 78 S. W. 275;McLeod v. Chicago, etc., Co., 125 Iowa, 270, 101 N. W. 77;Riley v. Galveston, etc., Co., 13 Tex. Civ. App. 247, 35 S. W. 826;Fa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT