Kearley v. St. Louis Car Co.

• Decision Date: 04 January 1938
• Docket Number: No. 24308.,24308.
• Citation: 111 S.W.2d 976
• Parties: KEARLEY v. ST. LOUIS CAR CO.
• Court: Missouri Court of Appeals

111 S.W.2d 976

KEARLEY v. ST. LOUIS CAR CO.

No. 24308.

St. Louis Court of Appeals. Missouri.

January 4, 1938.

As Modified on Denial of Rehearing January 19, 1938.

Error to St. Louis Circuit Court; J. Wesley McAfee, Judge.

"Not to be published in State Reports."

Suit by Albert Kearley against the St. Louis Car Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

C. A. Geers, of East St. Louis, Ill., for defendant in error.

Lehmann & Lehmann and Watts & Gentry, all of St. Louis, for plaintiff in error.

BECKER, Judge.

Plaintiff brought suit for damages for personal injuries alleged to have been sustained by him at the plant of the defendant. Upon trial plaintiff prevailed and defendant in due course sued out a writ of error. In the course of our opinion we shall refer to the defendant in error as plaintiff, and the plaintiff in error as defendant.

Plaintiff's petition is based upon common-law negligence, alleging that plaintiff was injured through the negligence of an employee of the defendant; that the defendant St. Louis Car Company was a Missouri corporation engaged in the manufacture of railroad locomotives in the city of St. Louis; that defendant was the owner and in exclusive control of its factory located at 8000 North Broadway, in the city of St. Louis, Mo.; that the Electro Motive Company, another corporation, by contractual relations with defendant, maintained a separate and distinct department at defendant's plant in which it electrically equipped locomotives manufactured by the defendant; that the plaintiff was an employee of the Electro Motive Company; was paid by that company; and at no time was employed by the defendant. The petition further alleges that, for the purpose of delivering the locomotive trucks manufactured by the defendant to the department maintained by the Electro Motive Company to be electrically equipped, there extended a set of tracks over which the locomotive trucks were pushed by a gasoline motor tractor, which was operated by an employee of the defendant; that it was customary and within the knowledge of defendant for plaintiff to go upon defendant's premises to see that the locomotive trucks were properly delivered to the department where they were electrically equipped; that on or about the 23d day of August, 1927, the plaintiff, pursuant to said custom, went upon the defendant's premises to see that the trucks were delivered, when plaintiff was required to stand on said track and between two of the said locomotive trucks to remove an electrical cable which was hanging over the end of one of the trucks in such a manner that it was likely to be damaged when said trucks were pushed by the defendant's tractor; that while plaintiff was standing in the track, and engaged in removing the cable, defendant's employee negligently started the tractor, causing the locomotive trucks to be pushed against plaintiff, when said employee knew that it was certain to strike plaintiff and without giving plaintiff any warning signal; that as a result of defendant's negligence plaintiff sustained permanent injury to his right knee.

Defendant's answer consisted of a general denial and a plea of contributory negligence.

No reply was filed, but trial was had as if plaintiff's reply had been a general denial.

From plaintiff's testimony we get the following picture: Plaintiff was employed as an electrician by the Electro Motive Company from 1925 until the latter part of January, 1928. The Electro Motive Company was an Ohio corporation and built electric railway motorcars, and occupied working quarters in the plant of the defendant in the city of St. Louis. One of plaintiff's duties was to solder electric terminals to the ends of the motor leads or wires running from motors mounted on trucks which went under bodies of the electric motorcars. These trucks were built by the defendant St. Louis Car Company, and when completed were pushed by tractor from that part of the plant occupied by the defendant to that used by the Electro Motive Company. At the time that plaintiff met with his alleged accident he had just finished soldering some electric terminals on motors mounted on trucks in defendant's part of the plant, and an employee of the defendant had backed a small three-wheel gasoline tractor up against the rear truck, preparatory to pushing the trucks over to the Electro Motive Company's department. The operator of the tractor, an employee of defendant, called to plaintiff, "your leads are hanging over; you had better get them out of the way or they will be cut off." Plaintiff replied: "All right. Wait a minute." Plaintiff thereupon stepped up to and leaned over the far end of the truck for the purpose of throwing the leads back over the top of the truck. According to the testimony of plaintiff's father, at the moment when plaintiff had stepped in between the trucks to get the leads and throw them up, defendant's employee "gave the trucks a quick kick with the tractor, and they came together, catching plaintiff's knee between the channel iron frame of the two trucks, up where the frame begins to round off at the corners. After they came together plaintiff just whirled with a twisting motion, and fell to the aisle."

Plaintiff was assisted to the company hospital, "which was located in the plant of the defendant St. Louis Car Company." Dr. Rosenfeld, the doctor in charge, "treated plaintiff's knee, after which plaintiff returned to his work." Dr. Rosenfeld gave the knee heat treatments for ten days. Plaintiff left the employ of the Electro Motive Company in the latter part of January, 1928.

About six months after the accident plaintiff noticed a swelling on the inside of his knee, which continued to grow in size, causing him pain, which continued until he was not able to sleep at night; he became very weak, and the knee gave way under him at times. In the early part of 1931, plaintiff went to Dr. Theodore Brooks, who advised an operation. Thereafter, in October, 1931, he was operated on by Dr. M. L. Klinefelter, and remained in the hospital for twelve days, and was then on crutches thereafter for about six months. He remained under treatment of Dr. Klinefelter until March, 1932.

On cross-examination plaintiff testified that the Electro Motive Company was an Ohio corporation with headquarters in Cleveland; that the company had a number of employees and had compensation insurance; that he had no knowledge of the provisions of the Workmen's Compensation Act, Mo.St.Ann. § 3299 et seq., p. 8229 et seq., at that time; and that he did not report the accident to the compensation commission; that his superintendent knew about the accident and had called him in one day and asked him to sign a paper which would enable "Dr. Rosenfeld to collect renumeration from the insurance company; that was for the Electro Motive Company."

A. W. Kearley, father of plaintiff, besides corroborating plaintiff's testimony as to the manner in which plaintiff met with his injuries, testified that the "Electro Motive Company was a Cleveland, Ohio, corporation."

Dr. Klinefelter testified as to the character of plaintiff's injuries.

For the defendant Dr. Rosenfeld testified that he treated plaintiff as an employee of the Electro Motive Company, at his office at the St. Louis Car Company, in August, 1927; that he was paid for his services by the Hartford Accident Insurance Company, "who carried insurance at the Electro Motive Company on the employees."

Rex Garland, who was the employee of the St. Louis Car Company who was operating the tractor which plaintiff's father testified had pushed the truck forward, causing injury to plaintiff's knee, denied having had any conversation with plaintiff regarding the wires overhanging the motor, or that he had pushed the trucks forward or caused plaintiff any injury.

Defendant adduced Fred Hartzke as a witness. He testified he was a claim adjuster connected with the Hartford Accident Insurance Company, and, upon an objection made by plaintiff to the question whether the Hartford company carried compensation insurance for the Electro Motive Company, the following colloquy took place:

"Counsel for defendant: I think it goes to a man's credibility. Here's a company that had compensation insurance, and he never made any claim for his injury, and if his injury was bothering him he would make claim.

"Counsel for plaintiff: He never made any claim for compensation. The man never lost a day's time.

"Counsel for defendant: There is no objection to the company having compensation insurance."

The court thereupon sustained the objection and counsel saved his exception to the ruling.

"Counsel for defendant: We offer to prove by this witness, for the purpose of impeaching the credibility of the plaintiff, that the Electro Motive Company carried compensation insurance with the Hartford Accident Company, and that no claim was ever filed for compensation."

Objection to the offer was sustained and an exception duly noted.

At the close of all of the evidence defendant requested a peremptory instruction in the nature of a demurrer, which was overruled.

The case was submitted to the jury upon instructions based on common-law negligence. The jury returned a verdict in favor of plaintiff for the sum of $2,000, and after an unavailing motion for new trial defendant sued out his writ of error.

Defendant contends here that the trial court erred in overruling its instruction in the nature of a demurrer to the evidence offered at the close of the entire case, because defendant's liability, if any, to plaintiff, was under the provisions of the Missouri Workmen's Compensation Act, and that such obligation thereunder, if any, had been fully discharged.

In support of this assignment of error defendant argues that plaintiff's petition and his evidence show that "at the time of plaintiff's alleged injuries, defendant was engaged in the manufacture and equipment of electric railway...