Koenig v. Kansas City Rys. Co.

• Decision Date: 16 June 1922
• Docket Number: No. 22814.,22814.
• Citation: 243 S.W. 118
• Parties: KOENIG v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

243 S.W. 118

KOENIG v. KANSAS CITY RYS. CO.

No. 22814.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by August Koenig against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

Chas. N. Sadler and Louis R. Weiss, both of Kansas City, for appellant.

Clif. Langsdale, of Kansas City, for respondent.

RAGLAND, C.

This is an action for personal injuries.

Plaintiff's case on the facts was substantially as follows:

At the time of the occurrence out of which the injury complained of arose, defendant was operating a system of street railways in Kansas City. In connection therewith it maintained a shop or barn for the repair of its cars at Ninth and Brighton streets, where plaintiff was employed as a common laborer. The work there was done under the superintendence of a foreman and an assistant foreman. Some time during the day of November 9, 1918, plaintiff was directed by one of them to assist in the loading of an armature on a flat car. The armature was 4 or 5 feet long, about 2 feet wide, and something like 18 inches thick. At the time plaintiff was called to help, the armature was suspended over the car track from the arm of a crane. The track extended north and south; about 20 feet south of the point where the armature was swinging, there was a small flat car, some 10 feet in length. Immediately south of the flat car, and attached to it by drawbars, there was a small single truck motorcar. It was used in moving the flat car from one part of the barn to another. The controller by which it was operated was at the north end of the motorcar next to the flat car. On the track about 10 feet north of where the armature was suspended, the foreman, Achers, and another, were working on some trucks from which the car had been removed. The assistant foreman, Thomas, asked one McCosgrove, in defendant's employ as a common laborer, if he could move the fiat car. McCosgrove replied that he could. Thomas then told him to push it up under the armature. Achers, the foreman, told plaintiff to hold the armature to steady it and keep it from swinging or turning while the flat car was being pushed under it. Plaintiff then took a position on the east side of the track opposite the armature and facing west; his right leg was placed somewhat in advance of the other, the toe of the right foot coming close to the east rail. Standing in this position, he took hold of the rope that was wrapped around the armature. The height at which the armature was swinging was not shown further than it was necessary for plaintiff to "reach up" in order to get hold of the rope, and that he stood as far from the track as it was possible for him to do and at the same time keep the armature steady and in the proper position for loading. While he was thus standing holding the armature, McCosgrove got on the motor car, and with it pushed the fiat car slowly up to within 3 or 4 feet of the armature and stopped. Thomas, who was standing on the west side of the track near the armature, told him to move it a little further. Thereupon McCosgrove so applied the power that the fiat car suddenly shot forward and into the truck some 10 feet north of the armature, compelling the foreman and workman who were employed about the trucks to jump to escape injury. There was a crosspiece attached to the north end of the fiat car which extended from 6 to 8 inches beyond the sides of the car. This timber cleared plaintiff's left leg, but struck his right, inflicting the injuries presently to be described.

McCosgrove, while engaged in moving the flat car toward the armature, could and did see in a general way all the men in the immediate vicinity of the track and the suspended armature. His view was wholly unobstructed, but his particular attention was fixed on the armature and Thomas, who was directing the movement of the car. He testified that plaintiff did not come under his actual notice until after he was struck and was falling.

McCosgrove was not a motorman and had had but little experience in running electric cars—he ran one "a little once in a while."

At the time the fiat car was being moved the second time, plaintiff did not see it coming toward him. He said:

"I was watching the armature in the first place, and then again I thought I was far enough away from it, which I would have been if he had come up slowly like he did at first."

With reference to his position and proximity to the track, plaintiff testified:

"Q. Which hand did you have on the rope around the armature? A. I had my right hand on it.

"Q. How were you standing? A. Standing something like in this position, something like this (indicating)—a foot, maybe a little further out; I can't just set it out that way.

"Q. With your right leg forward? A. Yes, sir.

"Q. How close to the track? A. 2 suppose I was pretty close to the track with the toe of my right foot; I had to get pretty close to it in order to reach over.

"Q. Why didn't you stand further away from the track? A. Because I could not.

"Q. Why couldn't you stand further away?

A. Well, if I had stood further away, why, I could not reach over to catch hold of the armature; I could not reach over on account of this truck coming along here, in there in that shape.

"Q. You were told how to stand or where to stand, were you? A. No, 1 had to stand in that position to hold it."

On cross-examination he testified, in part, as follows:

"Q. And did you stand there facing the west side, did you? A. I did.

"Q. On the east side of the track? A. On the east side of the track; yes, sir.

"Q. And you had your hand there on the armature, is that true? A. Yes, sir.

"Q. And you saw McCosgrove get up in the car? A. Yes, sir.

"Q. And you saw McCosgrove back the car down, did you? A. I did. * * *

"Q. And you knew Mr. Koenig, that the intention was to load the armature, did you not?

A. I did.

"Q. You knew he was to back it up till he got under the suspended armature, did you not?

A. Yes, sir.

"Q. And you say you saw him back it up within I believe 3 feet of the armature; is that correct? A. About 3 or 4 feet, about such a matter.

"Q. Three or 4 feet, and at that time the car was brought to a stop; is that correct?

A. Yes, sir.

"Q. Now, you saw it was not far enough?

A. No, sir. * * *

"Q. You knew it had to go back further, didn't you? A. Yes, sir.

"Q. And you knew they were going to load that armature there at that time? A. Sure.

"Q. And you stood up close to the track there, did you? A. Yes, sir.

"Q. You heard some one ask—Mr. Achers I believe you said—to get McCosgrove to come on back further? A. Yes, sir.

"Q. And you thought that you were back far enough? A. Yes, sire "Q. Back to the east far enough? A. Yes, sir.

"Q. If you had not thought that, you would have got further back, wouldn't you, Mr. Koenig? A. I sure would.

"Q: But you say, you mean your judgment told you that you was far enough away? A. Yes, sir.

"Q. And the car did come back, I believe; is that right? A. It did.

"Q. And a part of the car struck you? A. Yes, sir.

"Q. Which part was it? A. It is the cross-piece across the flat car.

"Q. And you said something about the car coming back in there suddenly? A. It did. "Q. But that fact did not make the car any wider, did it? A. It did not."

Both bones of plaintiff's right leg were broken, midway between the knee and ankle. He was immediately taken to a hospital, where he remained 18 weeks. While in the hospital and for seven or eight months thereafter, he was under the professional care of defendant's surgeons. He did not make sufficient recovery under their treatment, however, to enable him to make any use of his leg or to put any weight upon it. In February, 1920, he called another physician, Dr. W. A. Harroun. Dr. Harroun found that the foot was greatly swollen and discolored, that the entire lower leg was swollen, and that there was a cavity in it from which pus exuded. An X-ray picture taken at that time disclosed that there was no union whatever of the fragments of either of the bones; it further showed that there was an abnormal union between the large bone of the leg and a bone of the foot destroying the Lunge action of the ankle joint. In April or May following, plaintiff was again taken to a hospital, where an operation was performed in another effort to reduce the fracture of the bones of the leg. A second X-ray picture taken at the time of the trial, November, 1920, showed that there had been a union of the parts of the small bone, but none of the large one; the broken ends of the tibia being about an inch apart, swinging loose without any support in the tissues. The surgeons called as witnesses by plaintiff testified that he would never have any use of his leg. In response to questions by defendant's counsel, they said that in simple fractures there would be a union of the bones in 90 or 95 per cent. of the cases, while in compound fractures a uniting of the broken parts was rare, and that plaintiff's injury fell within the latter class. Defendant objected to the evidence tending to show abnormality of plaintiff's ankle, and nonunion of the broken bone in his leg, on the ground that such conditions were not within the allegations of the petition.

At the time of his injury, plaintiff was 39 years of age, in good health, weighing 163 pounds, and earning from $90 to $100 a month. Two years afterwards, at the time of the trial, he weighed 130 pounds; he had suffered, and wan still suffering, pain, sometimes intensely; and he was still unable to work in any earning capacity.

Defendant's evidence tended to show that plaintiff at the time he was run into by the flat car was no': assisting in loading the armature in any way, but that, on the contrary, while engaged in other work or for some purpose of his own, he heedlessly stepped on, or attempted to cross, the track immediately in front...