Landers v. Quincy, O. & K. C. R. Co.

• Decision Date: 15 May 1911
• Court: Missouri Court of Appeals
• Parties: LANDERS v. QUINCY, O. & K. C. R. CO.

137 S.W. 605

156 Mo. App. 580

LANDERS v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

May 15, 1911.

Rehearing Denied May 29, 1911.

1. MASTER AND SERVANT (§ 270)—INJURY TO SERVANT — DEFECTIVE APPLIANCES — EVIDENCE —ADMISSIBILITY.

Where, in an action for injuries to a section hand by the derailment of a hand car, the evidence showed that the hand car had been practically in the same condition for a long time before and after the injury, the admission of evidence that the car was in a bad condition after the injury was not erroneous.

2. EVIDENCE (§ 539½)—OPINION EVIDENCE.

Sectionmen are competent to testify as experts as to the proper manner in which to load a hand car and carry bars and tools thereon.

3. APPEAL AND ERROR (§ 1051)—HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

Where, in an action for injuries to a section hand by the derailment of a hand car, caused by an iron bar falling from the car, the evidence showed that iron bars and tools were laid on the platform of the car unsecured, any error in admitting the testimony of sectionmen as to the proper manner in which to load a hand car and carry bars and tools was not prejudicial, it being within common observation that iron bars and tools would be jarred out of place when merely laid on the platform.

4. APPEAL AND ERROR (§ 1050) — HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

Where, in an action for personal injuries, it did not appear that the verdict was enhanced by the fact that plaintiff had a wife and children, the admission of evidence that he had a wife and children was not ground for reversal.

Appeal from Circuit Court, Sullivan County; John P. Butler, Judge.

Action by Bert Landers against the Quincy, Omaha & Kansas City Railroad Company.

From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 134 Mo. App. 80, 114 S. W. 543.

J. G. Trimble and Hall & Hall, for appellant. E. M. Harber and A. G. Knight, for respondent.

BROADDUS, P. J.

This case is here for the third time. There have been three verdicts and one mistrial.

The allegation of the second amended petition on which the cause was tried alleges, among other matters, that on the 23d day of April, 1904, and for a short time prior thereto, plaintiff with others was in the employ of defendant as a section hand, engaged in the operation of its railroad, the duties of the plaintiff and others employed with him being to assist in the building and repairing of the track and roadbed along its said line of railroad; that in the discharge of their said duties plaintiff, and those engaged with him, was required to propel and ride from place to place on the track of defendant; that plaintiff in his said employment, as well as said other employés, was under the control and direction of defendant's section foreman or boss, it being the duty of said foreman or boss among others to direct plaintiff and said other laborers so employed about their said work and in the management of said hand car, and the loading and carrying of tools thereon, and look after and give attention to said tools and other things when loaded upon said car, and prevent same from escaping therefrom or otherwise injuring plaintiff and those employed with him, which said tools were required to be carried from place to place over said track upon said hand car, and which said tools were to be and were used by plaintiff and other employés in the discharge of their duties and labors aforesaid; that it was the duty of the coemployés of the plaintiff and each of them to discharge their said duties in a reasonably careful and prudent manner, and in such way and manner as not to unnecessarily or negligently cause injury to themselves or to plaintiff; that it was the duty of defendant to furnish plaintiff and the others a reasonably safe hand car, tools, track, and appliances with which to discharge and perform their said duties. And plaintiff says that the duties so owing to him and his coemployés by said railroad company and its said foreman and boss, as well as the duties of plaintiff's coemployés towards plaintiff aforesaid, were wholly and knowingly disregarded in such careless, reckless, and negligent manner that plaintiff while so in the discharge of his duties aforesaid was injured.

The issue was tried upon the following charges of negligence, viz.: First. That plaintiff was furnished an old dilapidated hand car, which was out of repair and unsafe, and that, on account of its condition, it became derailed, whereby the plaintiff was injured. Second. That a certain iron bar carried upon the car was so negligently placed thereon and unsecured, and that by reason of the way it was loaded and carried, and by reason of the failure of the foreman to perform his duties to the plaintiff to prevent the escape of said bar from the hand car, it jostled and fell from the car, one end of which caught a tie or rail and the other striking the car, thus derailing it, and injuring the plaintiff.

The plaintiff introduced evidence tending to sustain the said issues, and defendant introduced evidence tending to disprove the same. With his other evidence, plaintiff introduced witnesses who had been employed on the defendant's railroad and on other roads as section hands, and proved by them that, in their opinion, it was not reasonably safe to carry lining bars like the one in question loose on the platform of the car, as the bars were being carried at the time of plaintiff's injury. Their testimony was objected to because they were not shown to be experts. Plaintiff also introduced a witness over the objections of defendant who had not used the car, and stated that in his opinion the condition of the car would cause the bars to be shaken backward and forward. The witness stated that a reasonably safe way to carry such bars was to secure them to their places, behind and before the wheels of the car; that he did not consider it safe to carry them on the platform because the jolt of the car shook them, and caused them to side from it. The witness had about one year's experience in the...