Loduca v. St. Louis-San Francisco Ry. Co.

• Decision Date: 30 July 1926
• Docket Number: No. 25439.,25439.
• Citation: 289 S.W. 908
• Parties: LODUCA v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

289 S.W. 908

LODUCA v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 25439.

Supreme Court of Missouri, Division No. 1.

July 30, 1926.

Motion for Rehearing Overruled October 11, 1926.

Motion to Modify Opinion Overruled January 13, 1927.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Action by Joseph Loduca against the St. Louis-San Francisco Railway Company. From an order setting aside a verdict for plaintiff and granting a new trial, plaintiff appeals. Reversed and remanded, with directions.

Patrick A. Lavin and William Kohn, both of St. Louis, for appellant.

E. T. Miller and A. P. Stewart, both of St. Louis, for respondent.

GRAVES, J.

Action for personal injuries. Plaintiff had a verdict below for $12,500, which verdict was set aside by the trial court upon the motion of the defendant, on the fourth ground of such motion (the court sustaining the motion on said ground alone), which reads:

"(4) Because the court erred in overruling the demurrer to the evidence interposed by defendant at the close of the evidence on the part of plaintiff, over the objection and exception of defendant at the time."

From the order setting aside the verdict the plaintiff has appealed, and asks that the verdict be reinstated and judgment entered thereon.

The ground of negligence is thus stated in the petition:

"Plaintiff further states that on the 19th day of December, 1922, he was in the employ of the defendant, and, pursuant to his duties as a servant of the defendant, was engaged with other servants of the defendant in tearing up one of defendant's railroad tracks at a point near Gratiot Station in the city of St. Louis, Mo., and while so engaged plaintiff was struck in the right eye by a piece of metal, totally and completely destroying the sight of plaintiff's right eye; that plaintiff will he permanently blind in said right eye; that as a result of the injury of the right eye, the left eye will in the future also become involved, in which event the vision of the same will also be affected and may be completely lost; that plaintiff has suffered a severe shock to his nerves and nervous system; that his said injuries are serious and permanent.

"Plaintiff further states that his said injuries are the direct result of the negligence of the defendant, in this, to wit:

"That the defendant, through its foreman, under whom plaintiff was at the time working and whose orders he was bound to obey, negligently directed plaintiff to use a spike maul in breaking or knocking off the bolts holding in place the railroad track which it was at the time engaged in tearing up, when the defendant and its said foreman knew, or by the exercise of ordinary care would have known, that it was dangerous to use a spike maul for that purpose, in that in using the same in that manner the said maul and the bolts, plate, or rail with which it came in contact while being so used were liable to chip or splinter and cause such chips or splinters to strike plaintiff and injure him. That nevertheless the defendant through its foreman negligently directed plaintiff to do said work with said spike maul. That while plaintiff was engaged in using said maul in the manner directed by defendant's said foreman, as aforesaid, the same or the parts with which it came in contact while being so used chipped or splintered and caused a chip or splinter to strike plaintiff's right eye, injuring him in the manner above set out.

"That it was the duty of defendant to furnish plaintiff, while working as its servant proper, necessary and reasonably safe tools and appliances with which to work, but that on the aforesaid date it failed to exercise ordinary care in that regard by furnishing plaintiff and requiring him to do the work above described with a spike maul, when the proper, usual, customary, and safe method and the proper, usual, customary, and safe tools with which to do said work was for one man to hold a chisel with a handle attached against the bolt or plate or other part to be broken or knocked off and for another man to strike the same with a hammer or maul. That the use of said spike maul, in the manner which plaintiff was required to use it as aforesaid, was a dangerous and unsafe way of doing said work, and was not reasonably safe, and the said spike maul was an improper, dangerous, and not a reasonable safe tool with which to do said work, in that the said spike maul and the bolts or rail or parts attached thereto with which it came in contact while being so used were liable to chip or splinter and cause such chips or splinters to strike plaintiff and to injure him. That the same did chip or splinter while plaintiff was using said maul for the purpose and in the manner in which he was directed to use the same as above set out, causing a chip or splinter to strike his eye and injure him as above mentioned."

The answer consists: (1) General denial; (2) a plea of contributory negligence; and (3) assumption of risk. Reply was a general denial. Such are the issues made by the pleadings.

I. The evidence for the plaintiff (under the trial court's order setting aside the verdict) is of prime importance. This evidence is short and clear upon the questions, although plaintiff, and perhaps one of his witnesses, had to speak through an interpreter. For some years the plaintiff had been working for defendant in the capacity of a section hand, doing all things pertaining to work usually done by such men, and working under a foreman. The day prior to the day of the accident he was engaged in cutting nuts upon the ends of bolts which held the iron rails of the tracks together. The work was upon a Y in a yard of tracks. The usual method of cutting the nut from the end of a bolt was to place a chisel, 8 to 10 inches long, and...