Martin v. Union Pac. R. Co

• Decision Date: 21 May 1923
• Docket Number: No. 14762.,14762.
• Citation: 214 Mo. App. 307,253 S.W. 513
• Parties: MARTIN v. UNION PAC. R. CO.
• Court: Missouri Court of Appeals

253 S.W. 513

214 Mo. App. 307

MARTIN v. UNION PAC. R. CO.

No. 14762.

Kansas City Court of Appeals. Missouri.

May 21, 1923.

Rehearing Denied June 11, 1923.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

"Not to be officially published."

Action by John F. Martin against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watson, Gage & Ess, of Kansas City, for appellant.

Atwood, Wickersham & Hill, of Kansas City; for respondent.

BLAND, J.

This is an action for damages for personal injuries brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Plaintiff recovered a verdict and judgment in the sum of $7,500.00 and defendant has appealed.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. This necessitates our stating the facts in their most favorable light to plaintiff. There were some inconsistencies in the testimony of some of plaintiff's witnesses, and defendant to a certain degree relies upon the statements of these witnesses that are most favorable to it. However, in stating the facts we take the testimony of these witnesses in its most favorable light to plaintiff as It was for the jury to harmonize the conflicting evidence. Lamb v. Mo. Pee. Ry. Co., 147 Mo. 171, 48 S. W. 659, 51 S. 81; Bobbitt v. Rd., 169 Mo. A;pp, 424,,153 S. W. 70; Bond v. C. B. & Q. Rd. Co., 110 Mo. App. 131, 84 S. W. 124; Cravens v. Hunter, 87 Mo. App. 456.

The facts show that plaintiff on October 26, 1920, was engaged by the defendant as a laborer in its bridge repair department with two other workmen (Hughes and Morley) under a foreman named Johnson. They were unloading from a railroad car at Muncie, Kan., hollow, glazed sewer tiling 24 inches in diameter, 30 inches in length, and weighing 300 pounds. When the men started to work, there were on the car three of these tilings, to be used in constructing a culvert. There were also several large crossing planks on the car; these planks would have made skids upon which to unload the tiling. When all but two of the planks had been taken off the car, Morley said to Johnson, "We had better leave two of these planks on to unload the tiling." Johnson replied, "I don't think it necessary." Morley then said, "They are pretty heavy, Mr. Johnson." Johnson then said, "Oh, we can unload them; put the planks off." Johnson's directions were complied with, and the planks were put off and. the unloading of the tiling started.

It was intended to unload the tiling and place it upon a push car upon an adjacent track. The flat car or material car from which the tiling was to be unloaded had a guard rail around the sides and ends 10 inches in height and 4 inches in width. The distance from the top of the railing to the ground was 5 feet. The material car was 8 feet wide, and the bed extended over the south rail about 18 inches. Morley and Hughes were on the car and Johnson and plaintiff were upon the ground. The tiling was to be lowered off of the west end of the car. Johnson located himself at the west end of the car and on the outside of the south rail and directed plaintiff to go to the inside of the rail, which he did, stationing himself with his back to and south of the coupler. Morley and Hughes moved the first tiling to the west end of the car and upended it over ale 10-inch guard rail with the bell end of the tile toward the west. Plaintiff testified that—

"They just dumped it right out, and Johnson. of course, was on the outside, and he grabbed one end and me the other. I grabbed hold as good as I could, and aimed to put one hand underneath, and yet it came with such force it mashed me right down. I fell across the rail. and it fell on my leg and broke my leg and strained my back."

He further testified that the two men or the car did not check the speed of the tiling down to Johnson and himself. He had no opportunity to get hold of it. It was so heavy that he could not hold it up, and it "crushed" him down. He caught it with one hand as it came over, but he and Johnson were unable to check in any degree the speed of the tiling; that he did not have time to take hold of the end because he could not reach it.

He had been doing bridge repair work for 21 years and had often handled heavy objects and was a strong man, but had never helped unload tiling of this size and weight. Plaintiff testified, when asked, "Had you not been lifting considerable more than that on a great many occasions?" answered, "I had not." That he would say at the time of the trial the tiling was too heavy for two men to handle. He further testified, "We never unloaded anything like that before," and that he relied upon Johnson's statement as to how the work should be done. There was expert testimony that two men on the ground were too few to unload such a tiling with safety under the circumstances, and that there should have been four men; that the proper way to unload a tiling of this kind was by the use of skids.

Plaintiff's theory of recovery was submitted in his instruction No. 1, which told the jury:

That "if you believe and find from the evidence that * * * Johnson adopted the plan and method of two persons being used on said car, and plaintiff and said Johnson being on the ground to receive said tiling * * * and ordered plaintiff to assist in doing said work in said manner, if so, and that, owing to the size and weight of said tiling under all the facts shown in evidence, the said means and method were dangerous and not reasonably safe for plaintiff, if so, and that it was feasible and practicable and reasonably safe to use and pursue another plan and method of unloading and handling said tiling with the means then at hand and by the use of ordinary care, if so, and that it was dangerous and not reasonably safe to the person of plaintiff for only two men to be used by defendant in receiving and lowering said tiling from said car, if so, and that under the method then being used more than two men on the ground were reasonably necessary at said time and place, if so, and that said Johnson knew, or by the exercise of ordinary care could have known, of all the aforesaid facts, if any, before adopting the method being then pursued, and before so ordering plaintiff to so do said work * * * said foreman Johnson was guilty of negligence, if so, or if you further believe from the evidence."

That the employees of the defendant on the car could have so grasped and handled the tiling and lowered the same without injury to plaintiff, but that said employees failed to do so, but suddenly and prematurely let it go, and that the two men on the car—"failed to exercise ordinary care to coordinate their movements with those of plaintiff and Johnson and to work in unison with them, if so, and that thereby and in said respects said employees on said car were guilty of negligence," and if plaintiff was injured by reason of the negligence of Johnson mentioned in the instruction or by the. negligence of the two men on the car, then the verdict should be for plaintiff.

It is insisted that there is no evidence upon which either one of these two theories of negligence submitted in plaintiff's instruction can be based. Of course, if there was evidence to support either, then defendant's demurrer to the evidence was properly overruled. It will be noted that the first ground of negligence set out in the instruction submits to the jury the question as to whether the method of doing the work, in view of the fact that only two men were being used to receive the tiling, was negligent. It is insisted that plaintiff's expert witness testified that two men on the ground were sufficient to unload tiling of the character of the one in question for the first two hours, but that such men could not continue the work all day without skids. However, this witness latter testified that it would roquire six Men to lead the tiling under, the circumstances present in this case, "four on the ground and two on the car." Before this last question was answered the court said, "You are asking about a single tiling?" and plaintiff's attorney answered, "Yes": and it is plain that the answer referred to the unloading of a single, Or the first tiling. It is true tint the evidence shows that both Johnson and Plaintiff were strong men, and the question propounded to the expert witness not include the strength of these two men, but the question was based upon the hypothesis that the men were of ordinary strength. The evidence shows that while these two men were men of good strength there is no evidence that they possessed abnormal or giant strength, but were men ordinarily strong in the business in which they were engaged. There is nothing in the evidence to suggest that they had the strength of four men.

There was ample evidence to go to the jury on the question as to whether Johnson, should have used skids, in view of the fact that he used only two men upon the ground to receive the tiling. Plaintiff's expert witness Hartung testified that the proper method to unload tiling of this kind under the circumstances was by the use of skids. There was ample evidence that it was practicable to use skids under the circumstances. There was evidence that the boards present would have made good skids. Johnson testified that the tiling could have been lowered in this manner. Defendant's expert witness Lundy testified that, in lowering a tiling weighing 500 pounds or over, it might be necessary to use a derrick, and that a tiling weighing, 400 pounds could be safely let down with skids, and that that would be the right way to do it. He was asked:

"You say if it (the tiling in question) weighed 100 pounds more then you could put the third man there? A. I would not put the third man there, I would use skids."

He testified that the use of skids was a well-recognized method of lowering such objects. The attention of the...