Kettelhake v. American Car & Foundry Co.

• Decision Date: 04 February 1913
• Citation: 153 S.W. 552
• Parties: KETTELHAKE v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

153 S.W. 552

KETTELHAKE v. AMERICAN CAR & FOUNDRY CO.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

Rehearing Denied February 15, 1913.

1. TRIAL (§ 156)—REVIEW—ON DEMURRER TO EVIDENCE.

The propriety of overruling a demurrer to the evidence is to be determined on a consideration of plaintiff's evidence.

2. MASTER AND SERVANT (§ 284)—INJURIES— JURY QUESTION.

Evidence, in an action for the death of one working under a freight car being built by defendant car company, by a switch engine running into it, held to take the case to the jury.

3. APPEAL AND ERROR (§ 1002)—FINDINGS— CONFLICTING EVIDENCE.

A finding on conflicting evidence is conclusive on appeal.

4. APPEAL AND ERROR (§ 231)—RECEPTION OF EVIDENCE—SUFFICIENCY OF OBJECTION—IMMATERIAL.

An objection to evidence as "immaterial" is too general to support an assignment of error in admitting the evidence.

5. TRIAL (§ 79)—RECEPTION OF EVIDENCE— OBJECTIONS—SUFFICIENCY.

Where an objection is made and acted upon, and a ruling thereon saved, it is unnecessary

to repeat the objection to the same line of testimony.

6. DEATH (§ 72)—ACTION BY WIDOW—ADMISSION OF EVIDENCE—FINANCIAL CONDITION OF WIDOW.

In a widow's action for damages for the negligent death of her husband while in defendant's employ, evidence was admissible that plaintiff had no other means of support than her husband.

7. MASTER AND SERVANT (§ 156)—MASTER'S DUTY.

An employer's duty to furnish a safe place of work is continuing, so that if a car under which an employé was working in defendant car company's yards was made unsafe by the employer's negligence in sending a switching crew in on the track without warning to such employé, the employer was liable for resulting injuries.

8. MASTER AND SERVANT (§ 231) — SAFE PLACE OF WORK—ASSUMPTION BY EMPLOYÉ.

An employé may assume, in the absence of contrary knowledge, that the employer will furnish him a reasonably safe place of work.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Agnes Kettelhake against the American Car & Foundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee and Wm. R. Gentry, all of St. Louis, for appellant. Geo. Safford, of St. Louis, for respondent.

REYNOLDS, P. J.

The appeal in this case, from a judgment against the American Car & Foundry Company, was originally taken by that company to the Supreme Court of the state. The verdict and judgment were for $5,400. On consideration of the cause the Supreme Court, adopting an opinion by Mr. Commissioner Brown, transferred the cause to our court, the opinion reported under the title Kettelhake v. American Car & Foundry Co., 147 S. W. 479, not yet officially reported. The action was originally instituted February 5, 1908, by plaintiff, widow of one Frank Kettelhake, against the defendant American Car & Foundry Company and two others for the recovery of damages alleged to have been sustained by reason of the death of her husband. As pleaded in the amended petition, the right of action set out in the first count of the petition purported to be based upon section 2864, Revised Statutes 1899, as amended by the Act approved April 13, 1905 (Session Acts 1905, p. 135), now section 5425, Revised Statutes 1909, $10,000 being claimed as damages under the provisions of that act. The second count was founded on section 2866, Revised Statutes 1899, as amended by the Act approved March 19, 1907 (Session Acts 1907, p. 252), now section 5427, Revised Statutes 1909. Ten thousand dollars was likewise claimed under this act. Before the case was finally submitted to the jury plaintiff dismissed as to the second count, so that is out of this case. Recovery was had on the first count and against the appellant American Car & Foundry Company alone, the plaintiff having taken an involuntary nonsuit as to the two individual defendants. It is in connection with this latter phase of the case that a federal question was sought to be injected into the case. We refer to the opinion of Mr. Commissioner Brown, before cited, for a full statement of the facts connected with this.

The errors here assigned by counsel for the appellant are four, namely, to the overruling of the demurrer to the evidence, to the admission of improper evidence tending to show plaintiff's poverty, to the giving of improper instructions and to the denial of the application of the American Car & Foundry Company's application for removal of the cause to the United States Circuit, now District Court.

It goes without saying that the demurrer to the evidence is to be determined on that of plaintiff, respondent here. A very careful reading and consideration of that satisfies us that it was sufficient to take the case to the jury. Plaintiff's husband was a car repairer in the employ of defendant, a corporation created and organized under and by virtue of the laws of the state of New Jersey, engaged in the manufacture and repair of cars in the city of St. Louis. It there had extensive shops and yards, moving cars in and about its yards by locomotive engines owned and operated by it, there being a network of tracks in its yards along which it moved and on which it placed cars in course of construction or repair. Immediately before the accident Kettelhake and a fellow employé named Lechner were engaged in what Lechner calls "working bottoms. That is, fastening nuts on the bottoms of these box cars." He further testified that to do this they worked under a car, which had been placed on one of the tracks in the yards of the defendant corporation. He and Kettelhake had been at that work all of the day of the accident, which occurred between four and five o'clock of January 23rd. A few minutes after four o'clock on that afternoon, having occasion to quit his work temporarily and go to a toilet room, he left Kettelhake at work under the rear car of three cars that were in place. As he was walking away from this car, he saw a switchman or brakeman coming toward him but on the south side of the cars at which witness had been working, witness then being on the north side. When he first saw this switchman or brakeman, the latter stopped, facing the engine and train of seven cars that were being backed down along track No. 12, upon which the three cars, under one of which they had been working, were standing. This man "just waved his hand." The cars were then coming down toward the three stationary cars. Witness said that when he saw this man signalling toward the on-coming train, he could see around the three standing cars and there was nobody back there. As the man signalled with his hand the train backed toward these cars under which he and Kettelhake were working. They came down "about as fast as a man could walk." After the man had signalled to the on-coming train, it passed between him and witness. He then heard the bump of the on-coming cars as they struck the foremost of the three cars in place and that was all that he heard in the way of noise. He further testified that this was a few seconds after he had got from under the car where he had been working along with Kettelhake and under which he had left Kettelhake at work, and that no one had walked along past these three cars and no one had hallooed or called out to him or his partner at work there. Witness was standing very near to these cars in place when he saw this man signalling. He described and located it on photographs in evidence, marked it out there and stated that he should judge that it was between ninety and a hundred feet from where he was to where these cars were. While he was at this point there was nobody in sight except this switchman or brakeman. Witness looked back and could see all the way on the south side of the car; there was nobody on the south side or on the north side of the cars. When the cars bumped witness was between a hundred and a hundred and thirty feet from them, walking pretty fast. He remained away about ten minutes in all and went right back to where he and Kettelhake had been working; met a young man running in that direction who told him to take hold of a ladder. They constructed a stretcher out of that, went to where Kettelhake was and found him lying near the center of the car about a foot or a foot and a half from it; was lying there moaning and holding his leg; his pants were torn and bloody, torn at the knee. It was not to exceed eight or ten minutes from the time he had left Kettelhake at work until he got back and saw him lying at the side of the car. When he saw this switchman the latter was standing between these three cars and the on-coming train, apparently at or near a curve in the track and this switchman went back along the curve to where he could see his own train and gave a signal, giving it with his hands. As soon as the signal was given the engine and the seven cars came along and witness heard the crash of the impact and that, he insisted, was the only noise he heard; heard no one call out before he left or while he was at work a few seconds before under the car with Kettelhake. His hearing was good; was sure he would have heard anyone that had called out to them to look out. When going toward the toilet met a couple of men who had been engaged at the same kind of work on the other end of the same car upon which he and Kettelhake had been working and spoke to them; looked at his watch, on their request, and told them it was five minutes past four.

Another witness, who was looking out of the window of a house near the yards of the defendant corporation, testified that he saw a man standing up working upon or near, within an arm's length, of the corner of a new freight car, one of three cars that had been standing on a track in the yards of the defendant corporation's plant for several...