Johnson v. Waverly Brick & Coal Co.

• Decision Date: 05 July 1918
• Citation: 276 Mo. 42,205 S.W. 615
• Court: Missouri Supreme Court
• Parties: JOHNSON v. WAVERLY BRICK & COAL CO. et al.

205 S.W. 615

276 Mo. 42

JOHNSON v. WAVERLY BRICK & COAL CO. et al.

Supreme Court of Missouri. Division No. 1.

July 5, 1918.

Appellants' Motion for Rehearing Overruled and Respondent's Motion to Modify Decision Overruled September 16, 1918.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Floyd Johnson against the Waverly Brick & Coal Company and the Missouri Pacific Railway Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded unless plaintiff enter remittitur, and in that event affirmed.

The plaintiff brought this suit in the circuit court of Lafayette county against the defendants to recover $30,000 damages for personal injuries received through their alleged joint negligence. The trial resulted in a judgment against both defendants for the sum of $15,000, and, after moving unsuccessfully for a new trial, both defendants appealed the cause to this court.

The defendant Waverly Brick & Coal Company (which for brevity will hereinafter be called the Coal Company) was engaged in mining, loading, shipping and selling coal. The defendant Railway Company was a common carrier, engaged in transporting coal and other freight to and from Waverly to and from other points in the state; and the plaintiff was an employé of the Coal Company, engaged in trimming cars— that is, standing on the cars while they are being loaded, and separating stone and other foreign materials from the coal, as it passed into the cars, and trimming them up neatly as they were being loaded. When the cars were to be loaded they were placed on a side switch of said Railway Company at a chute at said mine, at which there were three tracks on which cars might be placed for the purpose of loading, and the coal was carried up from the mines and dropped into a shaker, which carried the same to the car being loaded, and at the end of the shaker there was an apron extending to near the middle of the car for the purpose of distributing the coal in the car. The main line of the Railway Company passed north of the chute, and the three side tracks branched off from the main line about a quarter of a mile therefrom, and ran north and east of the chute, which make a large curve, and on the concave Side there-of there was a high bluff which prevented one working at the chute from seeing a car as it approached the same until it reached the point beyond the switch No. 3, a distance of about 180 feet.

At the time plaintiff was injured he was standing with his back to the north, with his left hand resting on the shaker. The plaintiff was an experienced man it the business, having worked for the Coal Company for years, and was perfectly familiar with the method of loading, switching, and handling the cars about the chute.

The uncontradicted evidence of all parties showed that it was the custom in moving the cars to be loaded or after they had been loaded for the foreman or some other employer in charge of the mines to advise the Railway Company what cars it was desired should be moved, and that such foreman would then notify the person engaged in trimming the cars what was to be done so he could look out for his own safety. The record also shows that it was not the custom of the Railway Company to notify the employés of the Coal Company of the intention to move the ears about the chute. This custom was known to, and acquiesced in by, the plaintiff and other employés of the latter company.

The plaintiff's evidence tended to show that on the morning of the accident Robert Moss, who was in charge of the mines and employés of the Coal Company, told plaintiff to go down to the train crew when the local came in, and ask them to set in some cars on the switch, which would necessitate moving the car on which the plaintiff was at work under the chute as a trimmer; that, in pursuance of the instructions of Mr. Moss, plaintiff saw the train crew, but was advised by them that they would not be able to do the switching that morning. He then went back to work on his car, and while there engaged Moss came to him and asked if his message had been delivered. The plaintiff gave him the reply made by the crew. Moss says that he told the plaintiff to prepare for a switch, and that he would go down and see what he could do with the train crew. The plaintiff denies this statement of Moss, bet says that, after he told Moss what the train crew said, Moss went down the track to where the crew was switching near the main track. He continued to work on the car. Moss continued on down the track to where the train crew was at work, and asked them if they could not set in the desired cars. The foreman asked him if it could be done immediately. Moss told him it could. The foreman said all right, and signaled the train, which was slowly backing in his direction, to go on back. The train continued to back slowly south toward the shaft, and, after picking up two cars between the chute and the train, hacked on against the car upon which the plaintiff was at work. When these cars struck the car under the chute, the movement threw the plaintiff from the top of the car under the wheels and he sustained the injuries of which he complains. Moss, after telling the train crew that it would be all right to back on down and make the switch, did not make any effort to warn the plaintiff. He says that, having told the plaintiff what he intended to do, ho presumed that he would be on the lookout. Plaintiff testified that, not hearing what Moss said to him about gong on down and having the switch made, he gave the matter no further thought.

As a result of his injury, it became necessary to amputate the right foot of the plaintiff six inches above the ankle, as well as the little finger of his right hand.

The Coal Company introduced no evidence except rule 379 of the Railway Company, which was in force at the time the injury occurred. It reads as follows:

"In switching at stations and in yards where it is necessary to disturb cars that are being loaded or unloaded, great care must be taken to warn all persons in the vicinity of the same, and opportunity given them to get away from the cars and out of danger before the cars are moved.

"When cars are so moved they must be returned to the same position found."

At the close of the plaintiff's case counsel for the defendants asked, and the court refused, a demurrer to the evidence. Such other facts as may be necessary for the proper disposition of the case will be stated in the opinion.

O. L. Rider, of Vinita, Okl., for appellant Waverly Brick & Coal Co. Jas. F. Green, of St. Louis, and Harvey C. Clark, of Jefferson City, for appellant Missouri Pac. Ry. Co. Aull & Aull, of Lexington, for respondent.

WOODSON, J. (after stating the facts as above).

I. It is first insisted by counsel for the defendants that the trial court erred in refusing their demurrer to the evidence. The evidence clearly shows that the place where the plaintiff was working, in the absence of notice to him of the approaching train, was dangerous, and that each of the defendants knew of that danger and adopted means to obviate it. All the authorities recognize such places as being dangerous. Moore v. Wabash, St. Louis & Pacific Ry. Co., 85 Mo. 588; Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292.

And the plaintiff had the right to assume that the defendants would not imperil his surety by permitting or causing the car on which he was at work to be struck by other cars and moved without notice or warning to him. Young v. Lusk, 268 Mo. 639, 187 S. W. 849; Williams v. Wabash Ry. Co., 175 S. W. 903; Koerner v. Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292; Kame v. Railroad, 254 Mo. 175, 162 S. W. 240; Peppers v. Co., 165 Mo. App. 556, 148 S. W. 401; Anderson v. Co., 198 Mo. 448, 93 S. W. 304, 113 Am. St. Rep. 748; Porter v. Co., 213 Mo. 372, 111 S. W. 1138; Kettlehake v. Co., 171 Mo. App. 528, 541, 153 S. W. 552; Hutchinson v. Co., 247 Mo. 04, 152 S. W. 52; Erickson v. Railroad, 171 Mo. 659, 71 S. W. 1022; George v. Railroad, 225 Mo. 405, 125 S. W. 196; Chariton v. Railroad, 200 Mo. 413, 98 S. W. 529; Crawford v. Co., 215 Mo. 414, 114 S. W. 1057; Clark v. Railroad, 234 Mo. 306, 137 S. W. 583; Clark v. Co., 234 Mo. 436, 137 S. W. 577, 45 L. R. A. (N. S.) 203.

The Coal Company, in order to prevent injury to its employés engaged in such work, undertook to notify them when any car they were on was to be moved, and the Railway Company adopted the rule read in evidence designed to accomplish the same end. It is conceded that the Railway Company did not perform this duty to the plaintiff, nor to any other of its employés working about this chute, but depended upon the Coal Company to discharge that duty for both of them. The law is well settled that if one person owes a duty to another, and instead of performing that duty himself depends upon a third party to discharge it for him, and that party neglects to so do, and the person to whom the duty was due is injured in consequence of said neglect, then the party who owed the duty is liable in damages for the injury resulting therefrom. This is elementary. Neff v. City of Cameron, 213 Mo. 350, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Berry v. St. Louis, Memphis & Southern R. R. Co., 214 Mo. 593, 114 S. W. 27; O'Rourke v. Lindell Ry. Co., 142 Mo. 342, 44 S. W. 254; Applegate v. Quincy, Omaha & Kansas City R. R. Co., 252 Mo. 173, 158 S. W. 376; Benton v. City of St. Louis, 248 Mo. 98, 154 S. W. 473.

Nor can the defendants, or either of them, escape the result of causing or permitting cars to be pushed against the car upon which the plaintiff was working, without warning, by showing that they or either of them habitually neglected to do so. This is upon the principle that no custom or usage can make that lawful which is unnecessarily dangerous; and no one will say that to push cars back against the one on which the plaintiff...