Morris v. Atlas Portland Cement Co.

• Decision Date: 30 July 1929
• Docket Number: No. 27622.,27622.
• Citation: 19 S.W.2d 865
• Parties: JOSEPH MORRIS v. ATLAS PORTLAND CEMENT COMPANY and J.H. RUCH, Appellants.
• Court: Missouri Supreme Court

19 S.W.2d 865

JOSEPH MORRIS v. ATLAS PORTLAND CEMENT COMPANY and J.H. RUCH, Appellants.

No. 27622.

Supreme Court of Missouri, Division One,

July 30, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.

AFFIRMED (upon condition).

George A. Mahan, Dulany Mahan and Ezra T. Fuller for appellants.

(1) The court committed error in not sustaining appellants' separate demurrers to the pleadings and evidence: (a) Because respondent totally failed to prove the allegations of negligence alleged in his petition, offering proof of an entirely different cause of action which disproved the allegations of negligence in his petition. Plaintiff cannot sue upon one cause of action and recover upon another. Clements v. Yeates, 69 Mo. 623; Ensworth v. Barton, 60 Mo. 511; Eyerman v. Mt. Sinai Cemetery, 61 Mo. 489; Wasson v. Dow, 251 S.W. 71; Sumner v. Rogers, 90 Mo. 324; Huston v. Tyler, 140 Mo. 252. Plaintiff below alleged that his injury was caused by Ruch negligently ordering the steam shovel engineer to place a boulder on top of a loaded rock car. However, his only evidence offered on the cause of the injury is found in the testimony of plaintiff's witness Williams. His testimony must be taken as true He definitely states that the injury was caused by the track giving way which caused the foundation of the rock to come out and the rock to thereby become overbalanced and that it came right over the edge, and that part of the rail gave way and the load slipped down towards Morris. This testimony is contradictory to and disproves the allegations in plaintiff's petition that the proximate cause of the injury was Ruch's order to place the rock on the car. This was not a mere variance of the testimony from the allegations, but it was proof of a different cause of action in its entire scope and meaning. If the evidence offered will not support the allegations of the petition, it is a failure of proof. Park v. Park, 259 S.W. 417; Ross v. Mineral Land Co., 162 Mo. 317; Ingwerson v. Ry. Co., 205 Mo. 328. The plaintiff must recover on the cause of action stated in the petition or not at all. Jennings v. Cherry, 301 Mo. 321; Davis v. Western Union Tel. Co., 198 Mo. App. 692; Moss v. Fitch, 212 Mo. 484. (b) The order given by Ruch to place the rock on the car, was not a negligent order. An order of a superior to an employee that constitutes negligence on the part of the superior must be such an order that subjects an employee to an unusual and dangerous situation which is known by the master and not known or appreciated by the servant. 39 C.J. 483, par. 597; English v. Roberts, Johnson & Rand, 145 Mo. App. 439; McCollin v. Black Con. Co., 247 Mo. 174; Ryan v. Lea. 249 S.W. 685. The master in directing the servant to perform a certain service has a right to assume that the servant himself will exercise ordinary care in the act of performing such service. Pulley v. Standard Oil Co., 136 Mo. App. 172. The plaintiff testified that he saw the rock loaded and that it was loaded in a dangerous and careless manner; that he was familiar with the work here being done and had been engaged in this same kind of work for a long time. His testimony not only shows that he had knowledge of the danger, but it also shows that the order of the foreman relied on by the plaintiff did not create the danger, but that it was the manner of loading the rock which caused the dangerous situation. There is no allegation and no proof in the case that Ruch ordered the rock loaded in a dangerous and careless manner. (c) Plaintiff was injured by reason of his own carelessness and negligence in failing to be watchful for his own safety. While he had nothing to do with loading the cars, defendant's witness Sampson, testified that it was the duty of respondent if a car became overloaded or not to respondent's liking, to cause the car to be put in safer condition before he pulled it out with his engine. This evidence was not denied and must be taken as true. As respondent testified he saw the rock loaded and it was loaded in a dangerous and careless manner, it then became his duty not only for his own safety but because of his employment, to call attention to the dangerous situation and have it remedied before he moved the car. Respondent's witness Williams testified that he was between the steam shovel track and the loading track, that he was standing back out of harm's way. Giving respondent's entire evidence the most favorable construction, that it was necessary for him to walk near the car to give a signal to his engineer to pull out, respondent still had ample time after giving the signal to step back into a position of safety near that occupied by the witness Williams and his failure to do so constituted negligence on his part. Especially is this true in view of his testimony that he saw the rock loaded and it was loaded in a dangerous and careless manner. Smith v. Water Mills Co., 215 Mo. App. 129; 45 C.J. 957, par. 514; Carroll v. Transit Co., 107 Mo. 653; Woodson v. Street Ry. Co., 224 Mo. 685; Collett v. Kuhlman, 243 Mo. 591; Nivert v. Railroad Co., 232 Mo. 643; Gabriel v. Railroad, 135 Mo. App. 222; Fussellman v. Railroad, 139 Mo. App. 198. (d) Plaintiff assumed the risk arising from his contract of employment. He testified that he had entered the service of the company in 1922, and that he saw the rock loaded and that it was loaded in a dangerous and careless manner. The testimony of the witness Sampson is that respondent had the authority, privilege and the right, and that it was respondent's duty, when he saw that a car was loaded in a manner that he considered unsafe, to call attention to the car and have the rock removed. This testimony was not denied and consequently must be taken as true, but being familiar with the work and seeing the rock loaded and knowing that it was loaded in a dangerous and careless manner, he continued about his duties making no protest or demand for the removal of the rock to the foreman Ruch, although he said Ruch was present at the time, or to the steam-shovel engineer who was in fact undoubtedly present, and consequently continuing to work with knowledge of the danger to be encountered without protest and without making demand for the removal of the rock, he assumed the risk of his employment. Harbacek v. Iron Works, 287 Mo. 494. (2) The verdict is exhorbitant and excessive and shows on its face that it was the result of prejudice and passion, and the motion for a new trial should have been sustained for this reason. The verdict should be set aside and the case reversed and remanded. Lessender v. Ry. Co., 238 Mo. 247; Stolze v. Transit Co., 188 Mo. 581; Phippin v. Ry. Co., 196 Mo. 321; Brady v. Railroad, 206 Mo. 509; Campbell v. Rys. Co., 243 Mo. 141; Jones v. Ry. Co., 287 Mo. 64; Lackey v. Interurban Ry. Co., 305 Mo. 260; Johnson v. Brick & Coal Co., 276 Mo. 42. (3) The court committed error in giving to the jury plaintiff's main instruction numbered 1. (a) Because there was no evidence upon which to base said instruction. The evidence totally failed to prove the allegations of plaintiff's petition. Respondent's evidence given by the witness Williams, proved that the accident happened in an entirely different way from that pleaded in plaintiff's petition. (b) Because the instruction asked the jury to say what constitutes negligence, without asking the jury to find the facts which would constitute negligence in this particular case. McQuillan on Instructions to Juries in Missouri Civil Cases, 836, par. 1426; Carpenter v. Hines, 239 S.W. 593; Ward v. Ice & Fuel Co., 264 S.W. 80. (c) Because the instruction broadens the allegations of the petition, allowing the jury to find for the plaintiff if the rock fell from any cause whatever, when the petition alleges that the rock was unsafe and liable to fall because when placed it was loose and unsupported and liable to fall for that reason, thus constituting a submission on general negligence when specific acts of negligence were alleged in the petition. Johnson v. Ry. Co., 233 S.W. 942; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Talbert v. Ry. Co., 314 Mo. 352; Degonia v. Railroad, 224 Mo. 589; McKenzie v. Randolph, 257 S.W. 127; Bergfeld v. Ry. Co., 227 S.W. 108.

Chas. P. Noell and Hay & Flanagan for respondent.

(1) It is negligence for the master through a duly authorized representative to issue an order which, if carried out, he knows or should know will create an unusual and dangerous situation for the servant. Foster v. Ry. Co., 115 Mo. 165; Wright v. Iron & Steel Co., 213 Mo. App. 599; Bradford v. St. Joseph, 214 S.W. 281; Perlin v. Oil Co., 182 Mo. App. 727; Troll v. Cement Co., 160 Mo. App. 501; White v. Railroad, 156 Mo. App. 563; Pickett v. Railroad, 156 Mo. App. 272. That is what defendant did in this case. (2) The allegation of negligence upon which plaintiff rested his case was supported in every essential by substantial evidence as follows: (a) The loading of the car was under the orders and directions of Ruch, the superintendent. (b) Ruch ordered the boulder placed on the load when he saw the load and was bound to know that on account of the size of the load, the lay and shape of the top, the condition of the track, the boulder was likely to fall off. (c) Ruch was in a position to know and must have known — certainly must be held to have known — that plaintiff was in such proximity to the load as to be in danger of being struck and injured if the rock fell. Since the allegation of negligence was supported by substantial testimony, plaintiff was entitled to have his cause submitted to a jury. Keller v. Butchers' Supply Co., 229 S.W. 173; Goucan v. Portland Cement Co., 298 S.W. 789; Keen v. Rush, 284 S.W. 195. (3) The fact that the tracks were uneven, that in their movements the cars would inevitably rock and swing and tend to jostle the load on the cars and the...