Lafever v. Pryor

• Citation: 190 S.W. 644
• Decision Date: 18 December 1916
• Docket Number: No. 12222.,12222.
• Parties: LAFEVER v. PRYOR et al.
• Court: Court of Appeal of Missouri (US)

190 S.W. 644

LAFEVER v. PRYOR et al.

No. 12222.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by James Lafever against Edward B. Pryor and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

J. L. Minnis, of St. Louis, J. M. Davis & Sons, of Chillicothe, and S. J. & G. C. Jones, of Carrolton, for appellants. Scott J. Miller, of Chillicothe, for respondent.

ELLISON, P. J.

Defendant is receiver of an interstate railway carrier, and plaintiff was in his employ as a section man. He was injured while engaged in such service, and brought this action for damages. He recovered in the trial court.

It appears that plaintiff, with several other workmen, all under the direction of a foreman, was engaged in loading a timber 1 foot square and 20 feet long onto a flat car for the purpose of being transported to another place. A box car stood next to the flat car. One end of the timber had been placed on the flat car, and to lift the other end around onto the car plaintiff, with two or more of his fellow workmen, was on the inside, so that in swinging the timber it caught plaintiff's shoulder against the box car and injured it.

The negligence charged is that:

The "bridge timber, under the directions of said boss, was negligently and carelessly handled in such a way, in the loading of the same, as to catch this plaintiff between the side of the box car and freight car upon which said timber was being loaded in its careless and negligent manner, and did catch this plaintiff's shoulder between said timber and said box car, and did mash," etc.

It appears that the foreman saw there was danger and called to the men to "look out," when the others dropped below the timber and escaped, but plaintiff, not doing so, was caught. It is said by plaintiff in the briefs that the foreman should have called sooner. Defendant pleaded contributory negligence.

Instruction No. 1 for plaintiff is erroneous in assuming that defendant was negligent. That, of course, was the chief issue, and the instruction should have been so worded as to require the jury to find negligence. If the instruction had not assumed that defendant was guilty of negligence, it would still be erroneous in not stating to the jury what would constitute negligence; plaintiff not having done so in either of his other instructions. Magrane v. Railway Co., 183 Mo....