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.

114 S.W. 1013

215 Mo. 567

MEILY v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. TRIAL (§ 156)—DEMURRER TO EVIDENCE.

The function of a demurrer to the evidence is to admit as true all facts which the evidence tends to prove, as well as all reasonable deductions to be naturally drawn therefrom, at the same time maintaining that there is no legal liability under the admitted facts.

2. MASTER AND SERVANT (§ 163)—FELLOW SERVANTS—NUMBER REQUIRED FOR WORK.

It is as much the duty of a master to furnish a sufficient number of servants to perform the duties assigned to them in reasonable safety as it is to furnish them with a reasonably safe place in which to labor.

3. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT—QUESTIONS FOR JURY.

In an action for injuries to a servant while loading wheels on a car by means of a skid, whether plaintiff negligently let go of the wheels and ceased to push on them before they reached a point on the skid where they could be seized by the men on the car held, under the evidence, for the jury.

4. TRIAL (§ 143)—PROVINCE OF COURT AND JURY—QUESTIONS FOR JURY—CONFLICTING EVIDENCE.

Where the testimony is conflicting on any fact, it is erroneous to assume or declare as a matter of law that such fact is true or false, but it should be left to the jury.

5. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — OBVIOUS DANGERS — QUESTIONS FOR JURY.

In an action for injuries to a servant by being struck by wheels which he was loading onto a car by a skid, the question whether the danger was so obvious that plaintiff should not have used the way prepared for him held, under the evidence, for the jury.

6. TRIAL (§ 203)—INSTRUCTIONS—ISSUES OF CASE.

In an action for injuries to a servant, an instruction purporting to cover the whole case for the plaintiff was not defective for failing to submit the defense pleaded of assumption of risk.

7. NEGLIGENCE (§ 113)—CONTRIBUTORY NEGLIGENCE—PLEADING.

Contributory negligence is a matter of defense, and should be pleaded in the answer in order to be available as a defense, and plaintiff need not allege or prove that he was without fault at the time of the injury.

8. EVIDENCE (§ 508) — OPINION EVIDENCE — EXPERT TESTIMONY—SUBJECTS.

Where the subject of inquiry is one with which men of ordinary intelligence and information are not familiar and on which they are incapable of forming a judgment, expert evidence is admissible to explain it, especially where there is a call for scientific or professional knowledge or any particular knowledge or experience not possessed by ordinary people.

9. EVIDENCE (§ 512)—OPINION EVIDENCE— EXPERT TESTIMONY.

In an action for injuries to a servant while loading car wheels upon a flat car, expert evidence as to the proper way of loading the wheels was admissible.

10. EVIDENCE (§ 536)—OPINION EVIDENCE— COMPETENCY OF WITNESS.

In an action for injuries to a servant while loading car wheels on a flat car by means of a skid, witnesses, who were qualified to testify as to the proper method of loading wheels when an open skid was used, were qualified to testify as to the proper method to use where a closed skid was employed.

11. EVIDENCE (§ 555)—EXPERT WITNESSES.

The opinion of expert witnesses must be based upon the facts of the case as shown to exist by the other evidence in the case.

12. EVIDENCE (§ 547)—OPINION EVIDENCE— EXPERT WITNESSES.

The facts of the case may be presented to an expert witness, in order to enable him to base his opinion, in two ways: First, by propounding hypothetical questions embracing all the facts of the case which the evidence of either party tends to prove; and, second, in certain classes of cases, as in the application of mechanical appliances, where the evidence shows the character of the appliances, and that the witness is familiar therewith and knows from his own knowledge and experience the proper way of operating them, a general question may be asked regarding the proper method of operation.

13. EVIDENCE (§ 550)—OPINION EVIDENCE— EXPERT WITNESSES.

Where, in an action for injuries to a servant while loading wheels on a flat car by means of a skid, the evidence showed the character of the cars on which the wheels were to be loaded, the character, size, and weight of the wheels, the general character, construction, and length of the skids used, witnesses, who were shown to have been old, experienced railroad men, thoroughly familiar with the way such loading was and should have been done and the number of men required to properly and safely do the work, were properly permitted to testify as to the proper method of loading the wheels.

14. EVIDENCE (§ 528)—OPINION EVIDENCE— MEDICAL EXPERTS.

In a servant's action for injuries, medical experts were properly permitted to testify that plaintiff would continue to grow worse, and that the probabilities were that his injuries would be permanent.

15. TRIAL (§ 252) — INSTRUCTIONS — ISSUES AND EVIDENCE.

Where, in a servant's action for injuries, there was no evidence of any other injury sustained by plaintiff than through the accident stated in the petition and described by the evidence, an instruction in express terms limiting the recovery to the injuries caused by the accident in question was not erroneous as authorizing the jury to go outside of the pleadings and the evidence in fixing the amount of plaintiff's damages.

16. TRIAL (§ 252)—INSTRUCTIONS—EVIDENCE.

Where, in a servant's action for injuries received while loading, with the assistance of other servants, wheels on a flat car by a skid, there was no evidence tending to show what plaintiff's part of the work was, or that he was physically able to hold the wheels in position until the men on the car could grapple the wheels with hooks, an instruction that, if plaintiff failed to do his part in pushing the wheels on the skid and holding them there until they might be caught and held by the men on the car with the hooks, he could not recover, was properly refused as misleading.

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...