Meily v. St. Louis & S. F. Ry. Co.
Decision Date | 25 November 1908 |
Citation | 215 Mo. 567,114 S.W. 1013 |
Court | Missouri Supreme Court |
Parties | MEILY v. ST. LOUIS & S. F. RY. CO. |
Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.
Action by John E. Meily against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
This suit was begun in the circuit court of Jackson county by the plaintiff against the defendant to recover the sum of $20,000 damages for personal injuries sustained by him through the alleged negligence of the defendant. There were two trials had in the circuit court. The first resulted in a verdict and judgment for plaintiff for $4,000, and upon appeal to the Kansas City Court of Appeals the judgment was reversed and the couse remanded for a new trial. The second trial resulted in a verdict in plaintiff's favor for the sum of $8,000. At the suggestion of the trial court a remittitur of $3,000 was entered, and judgment was then entered in his favor for the sum of $5,000. After unsuccessfully moving for a new trial, the defendant duly appealed the cause to this court.
The facts of the case are few and are not complicated. They are as follows: At the time of the injury, the plaintiff was about 68 years of age, and had been in the continuous employ of defendant for 25 years, whose duty it was to look after materials, castings and get out materials for the drill press, etc., all of which was comparatively light work. On the day of his injury he was called from his regular duties by defendant's foreman and ordered to assist in loading car wheels onto a flat car. This was wholly outside of his ordinary duties, but he had during all the years of his employment been around and observed in a general way the manner in which the cars were generally loaded, but he had never assisted or been called upon to assist in that kind of work. He had no experience therein, save and except seeing other persons perform the work, and knew nothing of the weight of the wheels or the strength or force required to load them upon the car. Defendant had a regular gang of men to load car wheels. When plaintiff was ordered to load the wheels, he and two other men started to roll the wheels along the track and up the skids, and, just as they started to roll them up, defendant's foreman ordered one of them to go and do other work, and left plaintiff and one Moran to handle the wheels and push them up the skids. The plaintiff and Moran pushed the wheels up the skids until, as he claims, from lack of strength, they lost control of them, and they started to roll back, and in his attempt to get out of the way of them he fell and was run over by one of them and thereby inflicted upon him the injuries complained of. The skid or appliance with which the defendant was endeavoring to load the wheels at the time of the occurrence in question was a floored one and about 15 feet in length. The end of the car on which the skid rested was from 68 to 70 feet from the turntable, from which the wheels were rolled onto the track, to be rolled up the skids and into the car. The wheels were 33 inches in diameter.
The plaintiff's evidence tended to show that a run of 75 to 100 feet was required to give the wheels the necessary momentum to carry them up the skid, and that the assistance of two men outside of the wheels was necessary to safely get them within reach of the men on the car. Both open and closed skids were used by the defendant, and they were exactly the same in construction, except that the closed ones had a floor with cleats nailed thereto to prevent the men's feet from slipping from under them while pushing the wheels up the skid. In ascending the floored skids, the axle of the wheels was so low that the men between had to stoop over to reach it, and the evidence shows that the men pushing in this position of the wheels could not exert as much power as they could if the skid had been an open one, and they could have remained on the ground while the wheels ascended the skid. The evidence also...
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