Mattingly v. Broderick

• Decision Date: 23 February 1931
• Citation: 36 S.W.2d 415,225 Mo.App. 377
• Parties: A. A. MATTINGLY, RESPONDENT, v. FRANK A. BRODERICK, APPELLANT
• Court: Missouri Court of Appeals

36 S.W.2d 415

225 Mo.App. 377

A. A. MATTINGLY, RESPONDENT, v. FRANK A. BRODERICK, APPELLANT

Court of Appeals of Missouri, Springfield

February 23, 1931

Appeal from Dunklin County Circuit Court.--Hon. W. S. C. Walker Judge.

REVERSED.

Judgment reversed.

Orville Zimmerman and Lee Winchester for appellant.

(1) The proximate cause of the injury to plaintiff was the slipping of the greasy shoe on his right foot off of the smooth, metal top on the side of the metal bed of the car, causing plaintiff to fall backwards from the edge of the car to the ground, a distance of twelve or fourteen feet. Schaller v. Lusk et al., 184 S.W. 1179; Bootman v. Lusk, 190 S.W. 414, 416; Holverson v. St. L. & Sub. Ry Co., 167 Mo. 109, 117; Cody v. Lusk, 187 Mo.App. 327, 342; State ex rel. v. Ellison, 271 Mo 463, 472; Stokes v. Springfield Wagon Co., 289 S.W. 987, 990-91; Cregger v. City of St. Charles, 11 S.W.2d 753; Kennedy v. Ind. Quarry & Con. Co., 291 S.W. 475. (2) If the proximate cause of Mattingly's injury was his slipping on the metal edge of the car, and this was due to defendant's negligence, in some respect, then defendant might be held for the results of the fall, viz., striking the loose railroad tie, but not so, if the proximate cause was, as here, due to no negligence on the part of the defendant. McDonald v. Railroad, 219 Mo. 468, 491-92; Am. Brewing Ass'n v. Talbot, 141 Mo. 674, 685; State ex rel. Lusk v. Ellison, 271 Mo. 463, 473; Ruster v. Terminal R. Ass'n, 261 S.W. 716.

Langdon R. Jones for respondent.

(1) Respondent is willing to submit this issue on the cases cited thereon in appellant's brief, to-wit: Morris v. Dowell, 205 S.W. 229; Groce v. Skelton, 230 S.W. 329. (2) Where the footing of respondent was slick and slippery and the danger of falling enhanced, to leave the cross tie lying immediately under the car in question was negligence. The jury so found; also found that the injury which respondent received was such an injury as might reasonably have been anticipated by an ordinarily careful and prudent person. Under the law applicable to the facts in this case there can be no question of respondent's right of recovery. Mills v. Steadley & Co., 279 S.W. 162; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982, 990-991; Musick v. Dold Packing Co., 58 Mo.App. 333, 334-335; Johnson v. Construction Company, 188 Mo.App. 121; Holman v. Iron Company, 152 Mo.App. 682-683-684-685; Stewart v. Laclede Gas & Light Co., 241 S.W. 912-913; Eaton v. Wallace, 287 S.W. 614, 616; Trout v. Gas Light Co., 151 Mo.App. 226; Wisconsin & Arkansas Lumber Co. v. Scott, 239 S.W. 391, l. c 392, 393; Also see 229 S.W. 720; Helena Gas Co. v. Rogers, 147 S.W. 473; Bona v. Thomas Auto Co., 208 S.W. 306. (3) Respondent was not guilty of contributory negligence as a matter of law. No hard-and-fast rule is laid down on the question, each case being largely governed by its own facts. The general rule, however, is, that unless the danger of injury is so apparent, glaring and obvious that no reasonably prudent person would have attempted the act, or if it is a question upon which reasonable minds might differ, the question is one for the jury. Johnson v. Construction Co., 188 Mo.App. 121; Lincoln v. Railway Co., 7 S.W.2d 462; Northern v. Fisheries Co., 8 S.W.2d 993; Stewart v. Gas Light Co., 241 S.W. 912; Troll v. Drayage Co., 254 Mo. 337; Cech v. Chemical Co., 20 S.W.2d 511; Bueschling v. Gas Light Co., 73 Mo. 231; Dale v. Smith, 185 S.W. 1185; Eaton v. Wallace, 287 S.W. 616.

COX, P. J. Bailey, J., concurs. Smith, J., not sitting.

OPINION

COX, P. J.

Action for damages for personal injury caused by plaintiff falling off a railroad car and striking his foot on a railroad cross tie lying loose on the ground where he fell. Upon a trial before a jury plaintiff recovered and defendant has appealed.

The plaintiff recovered upon the theory that defendant was responsible for the loose tie being left on the ground where it was and that defendant was negligent in permitting the tie to remain there after he knew or by the use of ordinary care could have known of its being there.

Defendant makes the point that the court was without jurisdiction to try this cause by reason of lack of proper service of summons upon defendant but in the view we take of this case, it will not be necessary to pass upon that question.

The question in this case upon its merits is whether or not plaintiff on the evidence was entitled to go to the jury. This will necessitate a review of the essential facts most favorable to plaintiff, and conceded facts, for it is well settled that in passing upon a demurrer to the evidence the plaintiff must be given the benefit of all the evidence favorable to him. This may be affected by conceded facts that are unfavorable to him. The essential facts in this case are substantially as follows: The defendant and others were engaged as partners in doing work of dredging and ditching. They used many very heavy pieces of machinery and other tools and appliances that were lighter. When one job was completed they loaded the machinery, tools and appliances in railroad coal cars and flat cars and shipped to the next point where they were to work. Among the machinery was a large derrick which in unloading cars was used to lift the heavy parts of the machinery off the cars. At the time of plaintiff's injury two cars loaded with machinery and appliances were placed on a side track near Marked Tree, Arkansas, to be unloaded there. The derrick had been unloaded and placed in position to be used in unloading the heavy machinery from the cars. In placing the derrick, railroad cross ties were used to crib up the derrick. Cross ties for that purpose were shipped with the machinery and unloaded and carried from one place to another as needed. On this occasion the cross ties were carried by employees of defendant and his associates in business and put in place for use. They did not have enough of these ties and others were secured from the switch stand and from under the spur track. When no longer needed these ties were carried by employees of defendant and his associates and some of them replaced under the switch track from whence they had been taken and the others were carried across the track and left for future use. One witness said, "We tore the ties down and carried part of them south of the track across the track from where they were. I think this work was completed late in the evening the day before Mattingly was hurt. Mr. Broderick told us to tear the ties down and place them across the track for cribbing and we commenced to get the ties. Mattingly was not in this party and did not assist in this work. He was hurt late the next evening about four o'clock. . . . Just before I started to unload this car I had helped push it down. Mr. Broderick said when and where to stop the car. When the car stopped I went on top with Broderick and Mattingly. . . . Broderick directed Mattingly and me to throw off the car some empty oil drums. Mattingly was removing one of these when I saw him fall. The position he took was necessary in order to carry out the order of Mr. Broderick."

Plaintiff described the car from which he fell as a steel coal car with a sort of flange on the top of the sides of the car. He and Mr. Muse and defendant were on top of the car and defendant directed them to throw off the loose pieces and some barrels. Defendant was close to plaintiff as he worked. Plaintiff in describing his fall said, "I did throw off one or two barrels and came to this next barrel and I could not pull it loose from the machinery with my hands and I put my foot against it, and shoved it partly loose and reached hold of the barrel and tried to push it up and it came loose, as well as I know, and I started to fall backwards off the car and I grabbed the car some way and managed to light upon my feet." He had one foot on top of the flange at the top of the side of the car and it was that foot which slipped and caused him to fall. He fell to the ground and his right foot struck the soft earth and was not hurt, but the left foot struck on a loose cross tie lying on the ground near the track and his left ankle and leg were broken in three or four places. The place where he was working on the car was slick from an accumulation of gear grease and his feet were made slippery in walking over the greasy machinery as he was required to do. Defendant testified that some parts of the machinery projected above the top of the car and the barrels came up about even with the top. Plaintiff and Mr Muse were directed by defendant to throw barrels off the car but were not directed as to the position they should assume while doing it or the manner in which the work should be done. They were merely told to throw the barrels off the car and were left free to choose their own way of doing it. Plaintiff had been engaged in the same class of work for two years and knew how the work must be done and it is conceded that there was no negligence in loading the car or assigning plaintiff to the work of throwing barrels off of it. His walking over the greasy materials on the car was a necessary part of the work. Plaintiff had assisted in unloading another car on the same track just before he began work helping to unload this one. He had helped load this same machinery at Gary, Indiana, and helped unload it at Kennett, Missouri, and helped load it again at Kennett from whence it was shipped to Marked Tree, Arkansas, where he was hurt in helping to unload the machinery at that point. There is no direct evidence to show who had placed the loose tie where it was at the time plaintiff fell upon it but we think the circumstances in proof are sufficient to sustain a finding that some of defendant's servants...