Meily v. St. Louis & San Francisco Railroad Company

• Decision Date: 23 December 1908
• Citation: 114 S.W. 1013,215 Mo. 567
• Parties: JOHN E. MEILY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

114 S.W. 1013

215 Mo. 567

JOHN E. MEILY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

December 23, 1908

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

L. F Parker, Cowherd & Ingraham and I. P. Dana for appellant.

(1) Defendant's demurrer to the evidence should have been sustained at the close of plaintiff's case, and at the close of the whole case. (a) There is no evidence tending to show that defendant was negligent with reference to the number of men furnished to do this work. Jackson v Railroad, 104 Mo. 457. Neither plaintiff nor any of his witnesses testified that the loading of the wheels with two men on the car and two pushing the wheels was unusual or a departure from the usual and ordinary custom. They simply said that in their opinion there should have been six men. (b) The testimony of plaintiff's witnesses Mangan, Jones and Richardson, as to their opinion of the requisite number of men to put the wheels into the car, was incompetent. Their testimony was the mere expression of an offhand opinion, not based upon the facts, and should not be considered as part of this case. (c) And with this testimony out of the case plaintiff's evidence utterly fails to show any negligence whatever on the part of this defendant, while from the whole record the showing is clear that defendant had no knowledge that the two men could not do this work safely with the cleated floored skid. Webb's Pollock on Torts, p. 11; Graney v. Railroad, 157 Mo. 683; Brew. Assn. v. Talbot, 141 Mo. 693; Rogers v. Prtg. Co., 103 Mo.App. 698; Hysell v. Swift & Co., 78 Mo.App. 47; Hubbell v. Yonkers, 104 N.Y. 434; Jogsen v. Hall, 53 Mich. 274; Nelson v. Railroad, 30 Minn. 74; Mfg. Co. v. McCormick, 118 Pa. St. 518; Holt v. Railroad, 84 Mo.App. 433; Young v. Railroad, 93 Mo.App. 267; Bowen v. Railroad, 95 Mo. 268; Henry v. Railroad, 76 Mo. 288; Haley v. Railroad, 179 Mo. 35; Railroad v. Columbia, 65 Kan. 398; Herring v. Railroad (Va.), 45 S.E. 322; Stephenson v. Corder, 71 Kan. 475. We therefore claim that as a matter of law, upon the undisputed testimony, the court should hold that there was no evidence of failure of defendant's duty to plaintiff with reference to the number of men employed in doing the work. (d) Even if the record contained any competent testimony tending to show negligence on the part of defendant, the defect was a patent one and as open to the knowledge of plaintiff as to defendant. He was not ordered or directed to do this work in any particular way. Haviland v. Railroad, 172 Mo. 106; Railroad v. Rogers, 57 F. 381; Beckman v. Brewery Co., 98 Mo.App. 559; Lentz v. Chappell, 103 Mo.App. 208; Leitner v. Grieb, 104 Mo.App. 173. (e) The proximate cause of the injury was plaintiff's voluntarily taking his position between the wheels when he could, had he wished, have stood outside the danger point and pushed on the journal or that part of the axle which is outside the wheel. Smith v. Box Co., 193 Mo. 737; Hulett v. Railroad, 67 Mo. 240; Craig v. Railroad, 54 Mo.App. 527. (2) This case should be reversed on account of the admission of improper testimony offered by plaintiff, with respet to the number of men requisite to push these wheels upon the car. These witnesses were not qualified to express an opinion as to the number of men requisite to push these wheels upon the car, using a closed skid, because they admitted that they had had no experience with such skids. But, even if these witnesses were qualified, the questions were not put to them in the proper form, as hypothetical questions. Senn v. Railroad, 108 Mo. 150; Culbertson v. Railroad, 140 Mo. 60; Hurt v. Railroad, 94 Mo. 260; Turner v. Haar, 114 Mo. 335. (3) The court erred in permitting Drs. Jones and McDonald to testify as to the probability or likelihood of plaintiff's recovery. 3 Sutherland on Damages, 261; Fry v. Railroad, 45 Iowa 416; Curtis v. Railroad, 18 N.Y. 564; White v. Railroad, 61 Wis. 536. (4) Instruction 1, given in behalf of plaintiff, purports to cover the whole case, and should not have been given in that form, because it omits one defense pleaded by defendant, namely, assumption of risk. State v. Lentz, 184 Mo. 223; McMullen v. Railroad, 60 Mo.App. 231. (5) Instruction 5 was erroneous, because it did not confine the jury to the injuries set forth by the pleadings and established by the proof. It is in the nature of a roving commission to the jury to go outside of the pleadings and the evidence in making their allowance for plaintiff's injuries. Boyd v. Railroad, 108 Mo.App. 303. (6) Defendant's instruction 10 should have been given. It has long been the law in this State that, if a servant voluntarily assumes a dangerous place, when there is a safe one open to him, the fault is his own. Smith v. Box Co., 193 Mo. 715; Hulett v. Railroad, 67 Mo. 239; Moore v. Railroad, 146 Mo. 572.

J. C. Rieger and Elijah Robinson for respondent.

(1) There was abundant evidence tending to show that defendant was negligent in that it failed to furnish a sufficient number of men to do the work with safety, and that such negligence caused the accident. If the number of men furnished was not sufficient to push the wheels up the skids, that fact necessarily made the work dangerous for the men behind the wheels. Whether there was a sufficient number of men furnished to do the work, was a question of fact to be determined by the jury. On this question there was a conflict of evidence, plaintiff's witnesses testifying that six men, two on the car and four on the ground, were required, and defendant's witnesses testifying that only four men, two on the car and two on the ground, were needed. Plaintiff's foreman knew that if the number of men engaged in loading the wheels was insufficient, that fact would make the work dangerous. (2) The insufficiency of men to do the work was not patent in the sense that plaintiff was bound to know the fact and assume the risk. (3) Plaintiff is not precluded from recovering by reason of having voluntarily selected the more dangerous of two ways of doing the work. (4) The court properly admitted the evidence on behalf of plaintiff as to the number or men required to load the wheels with safety. Kaminski v. Iron Works, 167 Mo. 466; Longan v. Weltmer, 180 Mo. 340; Goings v. Railroad, 47 Mo.App. 181; Fogus v. Railroad, 50 Mo.App. 264; Buckelew v. Railroad, 107 Mo.App. 586. It was not necessary to make the questions to these witnesses any more specific. Longan v. Weltmer, 180 Mo. 341; Howland v. Railroad, 110 Cal. 513.

OPINION

WOODSON, J.

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 cause 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 sixty-eight years of age and had been in the continuous employ of defendant for twenty-five 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 carwheels 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 carwheels. 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 there were 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 fifteen feet in length. The end of the car on which the skid rested was from sixty-eight to seventy 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 thirty-three inches in diameter.

The plaintiff's evidence tended to show that a run of seventy-five to one hundred feet was required to give the wheels the necessary momentum to carry them up the skid; and that the assistance of two men outside the wheels was necessary to safely get them within reach of the men on the car.

Both open and closed skids were...