Koerner v. St. Louis Car Co.

Citation209 Mo. 141,107 S.W. 481
PartiesKOERNER v. ST. LOUIS CAR CO.
Decision Date24 December 1907
CourtUnited States State Supreme Court of Missouri

Graves, J., dissenting, and Burgess, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Henry J. Koerner against the St. Louis Car Company for personal injuries. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed and remanded.

Wm. L. Bohnenkamp and Wm. R. Gentry, for appellant. Seddon & Holland, for respondent.

GANTT, C. J.

This is an action for damages for personal injuries, commenced in the circuit court of the city of St. Louis. At the close of the plaintiff's case, the circuit court gave a peremptory instruction to find for the defendant, and a verdict was accordingly returned. After an unsuccessful motion for a new trial, the cause was appealed to this court.

The petition alleges the incorporation of the defendant, and charges that it was engaged in the business of manufacturing street cars, and in carrying on its business it maintained large sheds, yards, and railroad tracks, both in the yards and in the sheds, whereon cars were kept standing until they were ready to be taken out and delivered to purchasers; that, for the purpose of moving the cars from place to place in the yards and sheds, the defendant had a crew known as a "switching crew," composed of a motorman and switchman; that the motorman ran what was known as a "dummy," which was in fact an electric car, and that it was the duty of the switchman to give proper signals to the motorman, and it was the duty of the motorman to start and stop the dummy on receipt of these signals; that, in addition to having the duty of signaling to the motorman, the switchman was intrusted with the duty of coupling this dummy engine to new cars when they were ready to be taken out of the sheds, and to see that other cars standing upon the same track with the one which was to be moved were not coupled thereto, before giving the signal to the motorman to start the dummy, after it was coupled to the car which the switching crew undertook to move. It is further alleged that it was a part of the duty of the switchman to see that the cars standing upon the said track as the one to which the dummy was coupled, which cars were to be left on the said track, had their wheels properly blocked to prevent them from moving when the car to which the dummy was attached was pulled away. It is also alleged in the petition that the motorman and switchman were under the direct supervision and orders of the general superintendent of the defendant. The petition then proceeds to state that at the time of the accident, and for a long time prior thereto, the plaintiff was a painter by trade, and was employed by the defendant to paint cars in this said plant, and to do other work necessary in and about the finishing of the cars; that plaintiff was engaged in a different department of service from the switchman and motorman, and was a member of what was known as the "paint gang," under the direction of the paint foreman, who had no authority whatever over the motorman and switchman; that on the 12th day of March, 1903, plaintiff had climbed upon a scaffold or trestle erected by the side of a new car, which was standing on one of the tracks in the defendant's sheds, and was at the time engaged in removing surplus putty from the edges of the windows on the outside of said new car; that while so engaged working upon the said car there was another new car on the same track directly in front of the one upon which the plaintiff was working, and was so close to it that the ends of the two cars touched each other, and they were fastened together in some manner, which was, and is still, unknown to the plaintiff, but plaintiff did not know at the time that they were so fastened together; that while plaintiff was so engaged at his work the switching crew came in with the dummy, and coupled to the car standing on the same track immediately in front of the car upon which plaintiff was working; that the switchman, after having coupled the dummy to the car in front of the one on which plaintiff was working, negligently gave to the motorman the signal to start said car in motion, without having unfastened said car from the one upon which plaintiff was working, and without having used ordinary care to see that it was not attached to the car upon which plaintiff was working. It was further alleged that the switchman on said occasion negligently failed to block the wheels of the car upon which plaintiff was working so as to prevent it from moving, and negligently failed to warn plaintiff of his intention to move the said car which he was about to move, as was his duty to do. It is also alleged that the defendant negligently failed to provide plaintiff with a reasonably safe place in which to work, and negligently failed to provide for his safety, in that the defendant, through its said switchman, carelessly and negligently gave the signal to the motorman to start the dummy in motion, and negligently caused the car upon which plaintiff was working to be moved while plaintiff was working upon the same, and negligently failed to warn the plaintiff of his intention to move the said car, and negligently failed to block the wheels of the car upon which plaintiff was working, and that the motorman started the dummy in response to the signal from said switchman, putting in motion the car to which the dummy was coupled, and that the said car, when it moved forward, pulled with it the car upon which plaintiff was working, so that the step of the car upon which plaintiff was working was caused to strike the support of the scaffold upon which plaintiff was working, and knocked the same down, throwing the plaintiff off and injuring him severely. The petition then closed with a description of the plaintiff's injuries and the damages he had sustained, and a prayer for judgment in the sum of $15,000, together with the costs of the case.

The answer was, first, a general denial; second, a plea of contributory negligence on the part of the plaintiff; and, third, that any injuries sustained by the plaintiff were caused by the act of a fellow servant of the plaintiff, and plaintiff assumed the risk of any negligence on the part of such employé or employés. The reply was a general denial of the new matter set up in the answer.

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