Johnson v. Waverly Brick & Coal Co.
| Decision Date | 16 September 1918 |
| Citation | 205 S.W. 615,276 Mo. 42 |
| Parties | FLOYD JOHNSON v. WAVERLY BRICK & COAL COMPANY and MISSOURI PACIFIC RAILWAY COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.
Affirmed.
O. L Rider for appellant, Waverly Brick & Coal Co.
(1) The court erred in overruling the demurrer of Waverly Brick & Coal Company to plaintiff's evidence. Smith v. G. C. & D. F. Ry. Co., 164 S.W. 132; Martinowsky v. City of Hannibal, 35 Mo.App. 70; Stanley v. Union Depot R. Co., 114 Mo. 606; Myers v. Railway Co., 120 Mo.App. 292; Otrick v. Railway Co., 134 S.W. 668 Livesay v. First Nat. Bank, 86 P. 102; 3 Labatt's M. & S. (2 Ed.), sec. 1143; Junior v. Mo. E L. & P. Co., 127 Mo. 79; Stegmann v. Gerber, 146 Mo.App. 104; Hirsch v. Freund Bros. Bread Co., 150 Mo.App. 162; Clark v. M., K. & T. Ry. Co., 179 Mo. 66; Bailey v. Kansas City, 189 Mo. 503. (2) The court erred in overruling the motion of defendant coal company to instruct the jury as to the application and effect of certain portions of the testimony of the witness Day. State v. Phillips & Ross, 24 Mo. 484; Union Sav Assn. v. Edwards, 47 Mo. 449; Morrison v. Yancey, 23 Mo.App. 674; Carle v. City of De Soto, 63 Mo.App. 166; Illinois Central Railroad Co. v. Houchins, 89 S.W. 533; Edgerton v. Wolfe, 6 Gray (Mass.), 453; Rachel v. Rachel, 4 La. Ann. 500. (3) The court erred in refusing to give Instruction 1 requested by defendant coal company for a directed verdict in its favor. Railway Co. v. Bangs, 11 N.W. 276; McCarty v. Hotel Co., 144 Mo. 402; Herbert v. Mound City B. & D. Co., 140 Mo. 433; Robinson v. Packing Co., 171 S.W. 34; Scoffin v. Furniture Co., 171 S.W. 933; Palmer v. Tel. Co., 91 Mo.App. 106; Moore v. Railway Co., 146 Mo. 572.
James F. Green and Harvey C. Clark for appellant, Mo. Pac. Ry. Co.
(1) Plaintiff's instructions 5 and 6, which purport to cover the whole case are in conflict with instructions 4 and 5 given for the defendant railway company and ignore the defense pleaded by the defendant railway company and the evidence upon which the same are based and conceded to be proper matter of defense in instructions 4 and 5 given at defendant's request. (2) The error in an instruction given for the plaintiff, purporting to cover the entire case, is not cured by other instructions given on behalf of the defendant. State ex rel. Long v. Ellison, 199 S.W. 988; Wojtylak v. Coal Co., 188 Mo. 283; Traylor v. White, 185 Mo.App. 331; Hall v. Coal and Coke Co., 260 Mo. 369; Humphreys v. Railroad, 191 Mo.App. 721; Walker v. White, 192 Mo.App. 19. (3) A verdict of $ 15,000 under the facts in this case is excessive. Domineck v. Western Coal & Mining Co., 164 S.W. 567; Hollenbeck v. Railroad, 141 Mo. 113; Whalen v. Railroad, 60 Mo. 323; Adams v. Railroad, 100 Mo. 443; Chitty v. Railroad, 166 Mo. 443; Brady v. Railroad, 206 Mo. 509; Norris v. Railroad, 239 Mo. 655. (4) The plaintiff's evidence shows that he was familiar with the custom prevailing at the mine of looking to the vice-principal of the coal company and not to the employees of the railway company for notice when switching was to be done on the coal company's tracks; his statements and conduct on the day of the accident shows that he relied upon this custom, and his negligence in continuing to work on the car with his back in the direction from which a train would approach, in view of the fact that he knew the foreman desired the switch to be made and that he had gone down to where the train crew was at work, was the sole cause of his injury. If it be negligence in the railway company to fail to give warning of the purpose to move the car on which the plaintiff was at work, notwithstanding the custom in this regard existing at the mine and known to its employees, including the plaintiff, the conduct of the plaintiff constituted such negligence as a matter of law that the case should be taken from the jury, in so far as the defendant railway company is concerned.
Aull & Aull for respondent.
(1) The court properly overruled appellant's demurrer to the evidence and submitted the case to the jury. The authorities cited by appellant are not the law. (2) Instructions 4 and 6 for respondent properly declared the law. Hinzeman v. Railroad, 182 Mo. 624; Huhn v. Railroad, 92 Mo. 447; Settle v. Railroad, 127 Mo. 344; Hamman v. Coal Co., 156 Mo. 244; Wendler v. House Furn. Co., 165 Mo.540;Henderson v. Kansas City, 177 Mo. 477; Feldman v. Railroad, 175 Mo.App. 637; Hardwick v. Wabash, 168 S.W. 332; Dunn v. Company, 182 S.W. 113. (3) The verdict was a reasonable and fair verdict under the instructions of the court. Henderson v. Kansas City, 177 Mo. 491; Huhn v. Railroad, 92 Mo. 447; Settle v. Railroad, 127 Mo. 344; Hamman v. Coal Co., 156 Mo. 244; Wendler v. House Furn. Co., 165 Mo. 540. Appellant is not in position to complain. (4) The court properly refused instruction 2 requested by appellant coal company. The coal company, through its manager, was present at the time, urging the crew to shunt the cars in under and beyond the chute. The court properly refused instruction No. 7 requested by defendant coal company. The instruction eliminated all negligence whatever on the part of defendant coal company and required the jury, merely because the railway company crew failed to give warning, to find for defendant coal company. O'Rourke v. Ry. Co., 142 Mo. 351; Applegate v. Railroad, 252 Mo. 175. The motion for a new trial contains no assignment of error sufficient to have the action of the court in giving or refusing instructions reviewed in this court. K. C. Disinfecting Co. v. Bates Co., 201 S.W. 92; Polski v. St. Louis, 264 Mo. 250; Wampler v. Railroad, 269 Mo. 464; State v. Rowe, 271 Mo. 88; Carver v. Thornhill, 53 Mo. 286; Sweet v. Maupin, 65 Mo. 68; R. S. Mo. 1909, sec. 2025; R. S. Mo. 1909, sec. 1841. Railroad v. Snyder, 55 Ohio St. 361; Ella v. Boyce, 70 N.W. 1106; Lippert v. Company, Fed. 942; Van Winkle v. Company, 19 A. 472; Moon v. Railroad, 46 Minn. 109; Burkhart v. Schoot, 74 S.W. 430; Roddy v. Railroad, 104 Mo. 234; Geismann v. Electric Co., 173 Mo. 654; Young v. Oil Co., 185 Mo. 641.
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 the transporting of coal and other freight to and from Waverly to and from other points in the State, and the plaintiff was an employee 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 made a large curve, and on the concave side thereof 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 numbered three, 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 in 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 employees of the Coal Company of the intention to move the cars about the chute. This custom was known to and acquiesced in by the plaintiff and other employees 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 employees 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...
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