Lynch v. Laclede Gaslight Co.

• Decision Date: 08 June 1920
• Docket Number: No. 16191.,16191.
• Citation: 223 S.W. 111
• Parties: LYNCH v. LACLEDE GASLIGHT CO.
• Court: Missouri Court of Appeals

223 S.W. 111

LYNCH v. LACLEDE GASLIGHT CO.

No. 16191.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Rehearing Denied June 25, 1920.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

"Not to be officially published."

Action by James Lynch against the Laclede Gaslight Company. From a judgment for plaintiff, defendant appeals. Reversed.

Percy Werner, of St. Louis, for appellant. Fred J. Hoffmeister and Geo. V. Reynolds, both of St. Louis, for respondent.

BIGGS, C.

A master and servant negligent case. One of the controlling elements as presented by the record is the question whether, under the evidence, there was a failure to make a case for the jury either for the reason the evidence was insufficient to show negligence on the part of the defendant or that the evidence convicted plaintiff of contributory negligence as a matter of law.

At the close of plaintiff's case defendant filed a demurrer to the evidence, but did not stand thereon, and introduced evidence in its behalf, filing a like demurrer at the close of the whole case. Under such circumstances, in considering whether plaintiff has a case, we must take his evidence as true, and draw from it every reasonable inference in his favor, and, if defendant's evidence in any wise aids plaintiff's case, we must also take such evidence into account.

Several acts of negligence were charged. All but one were abandoned by plaintiff as not being supported by the evidence, and the cause was put to the jury on the ground of negligence alleged, that a fellow servant caused plaintiff's injuries. The fellow-servant rule of nonliability is avoided by alleging facts tending to show that defendant was operating a railroad within the meaning of section 5434, R. S. 1909; and hence there was no room for the application of the fellow-servant doctrine.

The answer was a general denial, coupled with a plea of contributory negligence. Following a verdict there was a judgment for plaintiff for $6,000, from which defendant has duly appealed to this court.

The petition alleges that plaintiff on December 7, 1916, was employed by defendant as an iron repairer at its plant in the city of St. Louis; that on said date defendant's superintendent ordered and directed plaintiff to operate a locomotive engine of defendant used by it in drawing cars of coal from the main tracks of the 2ron Mountain Railway into and along defendant's private tracks inside its coal storage yard; that plaintiff was inexperienced and unused to the operation of said engine, which fact was known to defendant; that in the operation of said locomotive defendant had furnished a hand bucket filled with sand with which it was necessary, in order to sprinkle sand upon defendant's tracks when they became slippery, to get down from the locomotive on the ground and sprinkle said sand upon the tracks and underneath the locomotive wheels by hand; that on said date defendant's tracks had become slippery by reason of a rainfall, and that on account thereof it was impossible to make said locomotive move; that while plaintiff was occupied in trying to move said locomotive he was ordered and directed by one of defendant's servants to abandon his position so that he, said servant, could attempt to make said engine move; that it became necessary for plaintiff to get down from the locomotive and sprinkle sand from said hand bucket on the tracks and beneath the wheels of the engine; that while thus occupied defendant's servant, although he was aware of plaintiff's position, and without warning to plaintiff, so carelessly and negligently operated, managed, and controlled said locomotive as to cause the connecting rod or other mechanism of said locomotive to catch and crush plaintiff's right hand and arm so as to require amputation thereof; that the injuries received were caused by and were the direct result of the negligence and carelessness of the defendant because of the negligent and careless manner in which the defendant, through its servant, operated, managed, and controlled said locomotive.

A better understanding of the facts will be had by reference to the following picture taken from the record:

Between what Is known as the rocker arm marked on the picture A-B and the rod underneath it known as the connecting rod and running almost parallel with it plaintiff's arm was caught while he was sprinkling sand from a sand bucket on the rail. When the engine starts the two rods come together like a pair of scissors, and plaintiff's arm was caught between A-B and the connecting rod beneath it.

The facts relied on to establish a case appear from plaintiff's testimony alone given in his own language, as follows:

"On December 7, 1916, I had been employed by the Laclede Gaslight Company for about two years doing repair work, iron and machinery. Defendant has a coal storage yard at Main and Rutger streets where they have railroad tracks and a locomotive engine to haul coal and material on said tracks. It is a small locomotive, what is called a saddle tank, carrying water on top of the boiler instead of having a tender. It is like any other locomotive, having a cab with windows on the side and front. I only run that locomotive once to pull down a tower at one time, and I was running it on the day that I was hurt. I run it from Monday until Thursday, and I got hurt Thursday afternoon. Mr. Igenbrodt [superintendent] told me that he wanted me to go over on the locomotive and to see Mr. Gibson, assistant superintendent. I went over and seen him and started to run it. We didn't have any rainy days during that time until Thursday. On the afternoon of Thursday I was pushing coal cars I got off the Iron Mountain track and I couldn't push them any further and it was raining and it Mould slip.'

At this time one Egan, concededly a fellow servant, who had operated this engine prior to plaintiff and who was at the time running a stationary engine near by, came to the locomotive operated by plaintiff and says to plaintiff, "Let me take her," and plaintiff, continuing, says:

"I got out and got the sand bucket to throw sand under it, and as I put nay hand down, like that, to throw sand where it catches, she revolved and caught my hand. I had to put sand under the wheels, to put sand on the rails. Before I started to operate this locomotive, Mr. Gibson told me to be careful about it, and wanted to know if I had ever run one, and I told him I had. I never had charge of a locomotive. He didn't speak about the sand because the weather was dry and we didn't use any then. There were windows in the cab of the locomotive. I have looked out of those windows. If a man standing at one of those windows or at the right-hand window of the cab looked out of the window, he could see a man standing in a position when you stand at the rails. There was a running board on the side, but it wouldn't stop a man from seeing another one. I know that because I looked out the window. When Mr. Egan got into the cab he tried to shift those cars the same as I was doing. I got out and put sand on the rail, and after I did I got caught, my arm crushed. couldn't just state how many times he did turn on the power. I believe he did it while we were both in the cab and the wheels revolved around. When I put my hand down there and was putting sand on the track, the wheels were not moving. When I...