Markley v. Kansas City Southern Ry. Co.

• Citation: 90 S.W.2d 409,338 Mo. 436
• Decision Date: 11 February 1936
• Docket Number: 33325
• Parties: Alphonso Markley v. The Kansas City Southern Railway Company, Appellant
• Court: United States State Supreme Court of Missouri

90 S.W.2d 409

338 Mo. 436

Alphonso Markley v. The Kansas City Southern Railway Company, Appellant

No. 33325

Supreme Court of Missouri

February 11, 1936

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded.

Cyrus Crane, Winston H. Woodson, James F. Walsh and R. Arch Smith, Jr., for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of all the evidence and marked B and further erred in submitting the case to the jury for the following reasons (a) Plaintiff did not prove that the hole was in the car when the car was set on the spur track by defendant. Sykes v Ry. Co., 178 Mo. 713. (b) Defendant did not select the car in which plaintiff was injured. Therefore defendant was not negligent. Roddy v. Ry. Co., 104 Mo. 250; Sykes v. Ry. Co., 178 Mo. 713; Nashville C. & St. L. Ry. Co. v. Meyers, 192 S.W. 169. (c) Plaintiff's employer had knowledge of the hole in the car before the plaintiff was injured. Sykes v. Ry. Co., 178 Mo. 713; Craine v. Met. St. Ry. Co., 246 Mo. 404; L. & N. Ry. Co. v. Weldon, 177 S.W. 461; Franklin's Admr. v. L. & N. Railroad Co., 160 S.W. 163. (d) Plaintiff did not rely on defendant selecting cars. (e) Plaintiff assumed the risk. Guthrie v. Gillespie, 6 S.W.2d 892; Stein v. Ballenfeld Oil & Grease Co., 39 S.W.2d 350. (f) Plaintiff's injury was not the proximate result of defendant's alleged negligence. Coy v. Dean, 4 S.W.2d 840; 45 C. J. 937, sec. 496; Logan v. Ry. Co., 129 S.W. 579; Roberts v. So. Pac. Ry. Co., 201 P. 961; M. K. & T. Ry. Co. v. Merrill, 70 P. 363; 10 C. J. 87, sec. 93; 10 C. J. 91, sec. 99; Sloan Co. v. Ry. Co., 58 Mo. 220; Nicholson v. Ry. Co., 141 Mo.App. 199, 124 S.W. 573; Seneker v. Lusk, 190 S.W. 96; Ostrich v. Ry. Co., 154 Mo.App. 420, 134 S.W. 465; Schreiber Milling Co. v. Ry. Co., 246 S.W. 647; Loomis v. Railroad Co., 208 N.Y. 323, 101 N.E. 911; Todd v. Ry. Co., 21 S.W.2d 1; Allen v. Larrabee Flour Mills Corp., 40 S.W.2d 579; Lellis v. Railroad Co., 124 Mich. 37, 82 N.W. 828; McCallion v. Mo. Pac. Ry. Co., 74 Kan. 785, 88 P. 50; Nashville Ry. v. Myer, 137 Tenn. 142, 192 S.W. 168; Glynn v. Railroad Co., 175 Mass. 510, 56 N.E. 698; Kurtz v. Railroad Co., 238 Mich. 289, 213 N.W. 172; Brady v. Ry. Co., 49 S.W.2d 28; Patton v. Eveker, 232 S.W. 762; Shaw v. Butterworth, 327 Mo. 622, 38 S.W.2d 57; Smith v. Mallinckrodt Chemical Works, 251 S.W. 155. (2) The court erred in giving plaintiff's Instruction 1 for the following reasons: (a) It broadens the issues and charges of negligence alleged in the plaintiff's petition and submits to the jury a specification of negligence which was not pleaded. Krelitz v. Calcaterra, 33 S.W.2d 911; Mitchell v. Wab. Ry. Co., 69 S.W.2d 286, 333 Mo. 926. (b) It is an improper declaration of the law in that it places the duty upon the defendant, upon a mere finding by the jury that the defendant furnished the car. (c) It is erroneous in that it told the jury that the duty was a nondelegable duty. (d) It assumed that the plaintiff was in the exercise of reasonable care for his own safety. State ex rel. Highway Comm. v. Williams, 227 Mo.App. 204, 51 S.W.2d 538; Root v. Ry. Co., 195 S.W. 378. (e) It does not require a finding of proximate cause. Lackey v. United Rys. Co., 231 S.W. 963. (f) It assumes that the hole was in the car when the car was set on the spur track by the defendant. State ex rel. Highway Comm. v. Williams, supra. (g) The instruction is ambiguous and confusing. Neff v. Cameron, 213 Mo. 365; Alexander v. Hoenshell, 66 S.W.2d 168; Freeman v. Berberich, 60 S.W.2d 395. (3) The court erred in striking out the allegations in defendant's answer setting up its rights and defenses under an indemnity agreement between defendant and plaintiff's employer, the crusher company, and in permitting the plaintiff to recover from defendant the amount of compensation paid to him by the crusher company. General Box Co. v. Mo. Utilities Co., 331 Mo. 845, 55 S.W.2d 442; St. L. & S. Ry. Co. v. Stewart, 181 S.W. 837; Kansas City, M. & B. Railroad Co. v. So. Ry. News Co., 151 Mo. 373, 52 S.W. 205; Heman Const. Co. v. St. Louis, 256 Mo. 332, 165 S.W. 1032; Berkson v. Ry. Co., 144 Mo. 211, 45 S.W. 1119; Flenner v. Railroad Co., 221 Mo.App. 160, 290 S.W. 78; Secs. 3268, 3309, R. S. 1929; 60 C. J., p. 696, sec. 3, pp. 697-698, sec. 5, pp. 712-713, sec. 25, p. 709, sec. 21.

Clif Langsdale and Roy W. Rucker for respondent.

(1) The court did not err in overruling defendant's demurrer to the evidence. The railroad company owed to the servants of the crusher company the duty to furnish cars which were reasonably safe for the use of the crusher company's employees. 52 C. J., sec. 2172; Sykes v. Railroad Co., 178 Mo. 693, 77 S.W. 728; Fassbinder v. Railroad Co., 176 Mo.App. 563, 104 S.W. 1154; Roddy v. Railroad Co., 104 Mo. 234, 15 S.W. 1112; Strayer v. Railroad Co., 170 Mo.App. 514, 156 S.W. 734; Allen v. Larrabee Flour Mills, 40 S.W.2d 600; Applegate v. Railroad Co., 158 S.W. 380; Johnson v. Waverly Brick & Coal Co., 276 Mo. 42, 205 S.W. 615. (2) Even though it may be admitted that the crusher company, through its employee Maynard, was negligent in not rejecting the car because of the defect, defendant cannot escape liability because its negligence combined with that of the crusher company to proximately cause the injury. Wack v. Schoenberg Mfg. Co., 53 S.W.2d 33; Hawkins v. Railroad Co., 170 S.W. 462; State ex rel. v. Haid, 28 S.W.2d 101. (3) The court committed no error in giving plaintiff's Instruction 1. The instruction required the jury, before returning a verdict in plaintiff's favor, to find facts which established negligence. This was sufficient. State ex rel. v. Ellison, 208 S.W. 443. (a) The instruction did not broaden the issues by permitting a finding for plaintiff if the jury found that the defendant could, by the exercise of ordinary care, have discovered the hole in the car when the petition only alleged that the defendant knew of the hole in the car. Arnold v. May Department Stores Co., 85 S.W.2d 753. (b) The instruction did not assume that plaintiff was in the exercise of ordinary care for his own safety and the instruction was in approved form. Greer v. St. L. Pub. Serv. Co., 87 S.W.2d 243.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries, sustained when plaintiff fell through a hole in the floor of a car furnished by defendant to plaintiff's employer. Plaintiff obtained a verdict for $ 10,000. Defendant has appealed from the judgment entered on this verdict.

Plaintiff's employer, the Centropolis Crusher Company, operated a rock crusher in Kansas City. Its plant was located on the east side of a double spur track, running north from defendant's main tracks. Rock, crushed at the plant, was conveyed on an endless belt into a bin, above the spur track, supported on large upright timbers on each side of the track. This rock was loaded from the bin into railroad cars by dropping through a tipple pipe. In loading cars, one employee of the crusher company got on a platform, on the east side of the track, attached to the supports of the bin. From this platform he could reach a rope attached to a lever which opened the tipple pipe and caused the rock to run into the car. He would then get down into the car and move the tipple pipe around so as to distribute the rock evenly in it. When standing in the bottom of the car, he had to reach up to hold this pipe through which the rock came. When it was filled as far as this pipe would reach, the car would be moved so that rock could go into the part not filled. It took about one-half hour to load a car. Three men helped to load cars. The switch track ran downgrade to the north so one man on the track started the car with a pinch bar, another man rode the car and operated the brakes, while the third man stayed at the bin to handle the tipple pipe. The men alternated with each other in this work. Defendant left cars on the switch about 200 feet south of the tipple. Since this rock was shipped to contractors for State Highway construction, it had to be clean, and before cars were loaded the floors were swept. If a hole was found in the floor, the instructions, from the superintendent of the crusher company, were to repair the hole, if it was small enough to be repaired by placing burlap over it, but if not, to report it to him. The superintendent then would decide whether to have other repairs made or to decline to use the car. If the superintendent decided not to repair the car, it was moved on down the track and left empty north of the tipple where it could be picked up by defendant. After a car had been swept out and any holes repaired, it was moved to the tipple for loading.

On the morning of May 15, 1931, the crusher company had orders for six cars to be loaded that day. Plaintiff and two other crusher company employees, Maynard and Bronson, comprised the loading gang. Maynard was sweeping the floors of the cars and moving them with the pinch bar. Bronson handled the brakes and plaintiff the tipple pipe. When Maynard swept the second car to be loaded, he found a hole, about four feet from the north end of the car, about a foot wide and about four or five feet long, running crosswise. He did not report it or patch it with burlap, but placed a piece of corrugated metal roofing over this hole, without nailing it down, as he was moving the car down to the tipple. When it was stopped there plaintiff moved the lever on the tipple and the crushed rock began to fall into the car. Plaintiff then got into the car and, while moving the tipple pipe over the car, his right leg went through the hole in the bottom of the car and he was injured. Crushed rock...