Lewis v. Terminal Railroad Ass'n

• Decision Date: 20 June 1933
• Docket Number: No. 22483.,22483.
• Citation: 61 S.W.2d 234
• Parties: LEWIS v. TERMINAL RAILROAD ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

61 S.W.2d 234

LEWIS v. TERMINAL RAILROAD ASS'N OF ST. LOUIS.

No. 22483.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

Rehearing Denied July 3, 1933.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be published in State Reports."

Action by Lee Lewis against the Terminal Railroad Association of St. Louis, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

Mark D. Eagleton, Dan P. Reardon, Jordon Clark, and Frank P. Aschemeyer, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries, the appeal being by defendant from a verdict and judgment in plaintiff's favor for $2,000.

The accident occurred late in the afternoon of February 26, 1930. Plaintiff was an employee of the Meyer-Vasquez Produce Company, and was injured when a freight car in which he was loading sacks of potatoes for shipment was run into by one of defendant's locomotives, causing certain of the sacks to be dislodged, and to fall down upon plaintiff.

Among defendant's numerous tracks in the city of St. Louis is what is known as the Cotton Belt team yard, located in the vicinity of Main and Florida streets. Plaintiff, in company with three fellow employees, had brought a truck load of potatoes to the yard, and had pulled alongside a car standing in a line of cars on No. 2 track. Three or four of the stakes were taken out of the side of the bed of the truck, and an iron platform was then laid down so as to form a bridge or passageway from the truck into the car.

The work of transferring the potatoes from the truck to the car had been going on for some thirty minutes when the accident occurred. The sacks were stacked in rows, five sacks high and three wide, and a total of four or five rows had been completed in one end of the car. Each sack weighed approximately one hundred twenty pounds. Plaintiff was stooping over arranging sacks on the floor of the car for the beginning of a new row, when suddenly and without warning the engine coupled into the string of cars, pushing them violently up the track for about four or five feet, and then reversing and pulling them some fifty feet in the opposite direction before the engine was brought to a stop.

The negligence pleaded and relied upon by plaintiff was the act of defendant, through its agents and servants, in causing and permitting its engine and cars to run into and collide with the car in which plaintiff was working, without having exercised due care to have discovered his presence in the car, and without having warned him of the intended coupling.

The answer of defendant was a general denial.

The first, and perhaps the chief, insistence of defendant is that the petition is wholly defective, and thus amenable to attack after verdict and judgment, for the reason that it fails to aver that either plaintiff or his employer was an invitee, as regards the use of the car in question. The only conclusion to be drawn from such omission, so defendant argues, is that plaintiff was a trespasser; that the only duty owed him by defendant was not to injure him willfully and wantonly after his peril was discovered; and that, inasmuch as neither the petition nor the proof purported to show such a breach of duty, not only was no cause of action stated in the petition, but the demurrer to the evidence should have been sustained.

It is quite true as a general proposition of law that, where the action is one for damages for injuries sustained by reason of a breach of duty owed the plaintiff by the defendant, the petition must charge the duty by pleading the facts out of which the duty arises (Field v. Chicago, R. I. & P. Ry. Co., 76 Mo. 614; Kirkland v. Bixby, 282 Mo. 462, 222 S. W. 462); and from this it necessarily follows that, where the pleader seeks to state a cause of action for breach of a duty owed by the defendant to the plaintiff as an invitee, the facts establishing such relationship between the parties should be set out in the petition so as to fix a standard for measuring the defendant's care (Degnan v. Doty [Mo. Sup.] 246 S. W. 922; Forsythe v. Shryack-Thom Grocery Co., 283 Mo. 49, 223 S. W. 39, 10 A. L. R. 711).

Now there is no serious contention that the petition in the instant case conformed to such requirements, but rather plaintiff's position is that the evidence, especially from defendant's own side of the case, should be said either to have disclosed that he was an invitee or else to have legitimately warranted that inference; that all of such evidence was brought into the case without objection; and, in fact, that plaintiff's status as an invitee was a conceded, or at least an undisputed, fact at the trial. He argues, therefore, that, inasmuch as such an averment might have been included in the petition by way of amendment without having changed the basic nature of the cause of action [Congregation B'Nai Abraham v. Arky, 323 Mo. 776, 20 S.W.(2d) 899; Sawyer v. Wabash R. Co., 156 Mo. 468, 57 S. W. 108], the petition, when its sufficiency is first questioned on appeal, and where no objection was made to the evidence which bore upon such omitted allegation, is to be considered as though it had actually been amended to conform to the evidence so introduced [State ex inf. v. Gromer (Mo. Sup.) 252 S. W. 705; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S. W. 671; Whitehead v. Koberman (Mo. App.) 299 S. W. 121; Oliver v. City of Vandalia (Mo. App.) 28 S.W.(2d) 1044].

We think that plaintiff's view of the ultimate situation is the correct one. In the first place, all of the witnesses spoke of the scene of the accident as a team yard, a term in railroad parlance obviously antedating the motor vehicle age, and commonly understood to refer to the portion of the railroad company's tracks where cars are set out on sidings for the purpose of being loaded or unloaded by those who have business with the company. Plaintiff himself testified that this particular track was used both for loading and unloading. But most significant of all was the testimony of defendant's witnesses, who were the members of the crew in charge of the engine which figured in the accident. The foreman of the crew testified that the particular track was used both for loading and unloading; that when he discovered plaintiff's presence in the car, and observed that he and his fellow workers were engaged in loading potatoes, he acceded to their request that they be allowed to finish unloading the truck before the car was moved; and that some three-quarters of an hour afterwards he saw the same truck return with a second load of potatoes. The testimony of other members of the crew was of like effect. One of them testified that he looked in the car, and "there was nothing that looked unusual" to him; while another stated that he glanced in at the door, that he saw the men going about their work, that he presumed they were in a hurry to get the load of potatoes off the truck so that the crew could move the car, and that, seeing what they were doing, he turned and walked away.

This evidence discloses abundantly, we think, that throughout the trial of the case it was taken as a conceded fact that plaintiff was in the car in conformity with the usages of defendant's business, and that the purpose to be accomplished in loading the potatoes was one in which defendant had an interest along with plaintiff and his employer. Under such a situation plaintiff's status was that of an invitee; and, in the light of the unanimity with which the evidence...