Moudy v. St. Louis Dressed Beef & Provision Company

• Decision Date: 07 July 1910
• Citation: 130 S.W. 476,149 Mo.App. 413
• Parties: WILLIAM MOUDY, Respondent, v. ST. LOUIS DRESSED BEEF & PROVISION COMPANY, Appellant
• Court: Missouri Court of Appeals

130 S.W. 476

149 Mo.App. 413

WILLIAM MOUDY, Respondent, v. ST. LOUIS DRESSED BEEF & PROVISION COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 7, 1910

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.

AFFIRMED (upon remittitur).

W. B. & Ford W. Thompson, for appellant, and Ralph Crews of counsel.

(1) A deposition may not be read in evidence unless one of the reasons assigned in the statute for the admission of said deposition is properly established by competent evidence. Wetherall v. Patterson, 31 Mo. 459; Livermore v Eddy, 3 Mo. 547; Grinan v. Mockler, 29 Mo. 346; Hollfield v. Block, 20 Mo.App. 331. (2) In the absence of actual knowledge of the condition of the brake defendant's servants were entitled to presume that the brake was an ordinary one and was in ordinary good order, and nothing short of actual knowledge of its defective condition would overcome that presumption. Elliott v Railroad, 105 Mo.App. 523; Riska v. Railroad, 180 Mo. 168; Meng v. Railroad, 108 Mo.App. 553; Fox v. Packing Co., 96 Mo.App. 173. (3) The defendant beef company, is not liable, notwithstanding the jury might find that it would have been safer to have used an engine to move and control the said car. Saxton v. Railroad, 98 Mo.App. 484; Hunt v. Railroad, 126 Mo.App. 79; Bokamp v. Railroad, 123 Mo.App. 284. (4) The question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? Zeis v. Brewing Co., 205 Mo. 638; Feddeck v. Car Co., 125 Mo.App. 24; Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Aldrich v. Transit Co., 101 Mo.App. 90; Wilson v. Railroad, 129 Mo.App. 658; Brown v. Railroad, 20 Mo.App. 222; Fuchs v. St. Louis, 167 Mo. 620; Atchison v. Railroad, 90 Mo.App. 489; Doss v. Railroad, 135 Mo.App. 643. (5) The verdict is grossly excessive. Chitty v. Railroad, 148 Mo. 64; Partello v. Railroad, 217 Mo. 645; Gibney v. Transit Co., 204 Mo. 704; Rodney v. Railroad, 127 Mo. 691; Ice Co. v. Tamm, 90 Mo.App. 202; Chlanda v. Railroad, 213 Mo. 244; Brady v. Railroad, 206 Mo. 509; Rittell v. Iron Co., 127 Mo.App. 463; Davidson v. Transit Co., 211 Mo. 320; Waddell v. Railway, 213 Mo. 8; Neff v. Cameron, 213 Mo. 350; Wilkerson v. Railway, 126 Mo.App. 613; Thompson v. Poplar Bluff, 124 Mo.App. 439; Miller v. Canton, 123 Mo.App. 325; McNamara v. Railway, 133 Mo.App. 645; Lattimore v. Power Co., 128 Mo.App. 372; Saller v. Shoe Co., 130 Mo.App. 712; Tucker v. Telephone Co., 132 Mo.App. 418; Burleigh v. Transit Co., 124 Mo.App. 724; Robinson v. Railroad, 133 Mo.App. 101; Barree v. Cape Girardeau, 132 Mo.App. 182; Garard v. Coal Co., 207 Mo. 242.

Phil H. Sheridan, Henry B. Davis and A. R. Taylor for respondent.

OPINION

NIXON, P. J.

--This was an action for personal injuries sustained by the plaintiff. The suit was brought originally against the appellant herein, together with the Missouri Pacific Railway Company and the Manufacturers' Railroad Association of St. Louis, but, as will be shown, the court at the conclusion of the plaintiff's evidence sustained a demurrer to the evidence so far as the two last named defendants were concerned.

The petition charges that the Manufacturers' Railroad Association of St. Louis, the Missouri Pacific Railway Company and the St. Louis Dressed Beef and Provision Company are the owners or jointly interested as lessees, licensees and operators of certain railroad tracks in the city of St. Louis, east of Broadway, commonly known as the Anheuser-Busch switches. That plaintiff on or about the 29th day of September, 1905, was in the employ of the St. Louis, Iron Mountain & Southern Railway Company in the capacity of a switchman. That defendant, the St. Louis Dressed Beef and Provision Company, has a place of business just south of one of said switches known as the Anheused-Busch switches and facing Broadway in said city, and that a railroad track owned or operated by the defendants is adjacent to the establishment of the St. Louis Dressed which is adjacent to the establishment of the St. Louis Dressed Beef and Provision Company intersects another railroad track owned and operated by the defendants. That the St. Louis Dressed Beef and Provision Company, by its servants and agents so negligently handled a car loaded with ice at its place of business that without any negligence on the part of the plaintiff, said car was allowed to become loosened, ran down the switch track, and collided with the train upon which plaintiff was riding and crushed plaintiff between the engine, and car of said train. That the railroad track leading from appellant's establishment was owned and operated by the defendants and is on a very steep grade so that it is unsafe to move cars on said grade without the use of an engine to control them, which fact was known to the defendants, or by the exercise of ordinary care might have been so known. The first specific charge of negligence is that said railroad track was built with a grade so steep that it was unsafe to attempt to handle cars on said grade without the use of an engine, and that the car aforesaid was attempted to be moved without an engine to control it. As a second specific charge of negligence, it is alleged that a derailing switch was built so near the point of intersection that when said car became loose said derailing switch was unable to prevent a collision by reason of its closeness. As a third specific act of negligence, plaintiff alleged that the employees of defendants were attempting to move a car on said switch without the use of an engine, thereby allowing the same to escape from them and run down said track and collide with the train upon which plaintiff was riding. It is further charged in the petition that the grade was so steep that it was necessary not only to have a brake on such car on said grade, but also to keep constantly blocks under the wheels of said car to keep it from moving, and plaintiff alleges as a specific act of negligence that defendants neglected to set a brake on said car and to keep blocks under the wheels of said car so that said car became loosened and collided with the train on which plaintiff was riding. That as a result of the collision, plaintiff was caught between the engine and another car and was injured as follows: His left leg was bruised and lacerated, the muscles of his right leg and kneecap were sprained and dislocated so that atrophy of the right kneecap occurred from the effects of said injuries, so that he was confined to his bed about three weeks and suffered great pain and anguish and will continue to suffer pain and anguish in the future, and that he will be put to a great expense in the future for medicine and doctor's bills and he will suffer great loss in being unable to earn as much wages as he had earned heretofore, and that said injuries to his right leg are permanent. Judgment was asked for twenty-five thousand dollars and costs.

The separate answer of the St. Louis Dressed Beef and Provision Company was a general denial and a plea of contributory negligence. The reply was a general denial.

The evidence at the trial showed that plaintiff was forty-six years of age and had been a switchman fifteen or twenty years. That on the morning of the accident, he was standing upon the footboard on the front end of an engine which was proceeding in a westwardly direction on an upgrade, pushing in front of it a freight car loaded with meat along the main track of the Iron Mountain railroad, and had reached a point some six feet east of the switch which, with other switches connected with the appellant's switch track, when a car filled with ice came in violent contact with the west end of the car which was being pushed by the engine on which plaintiff was riding, and he received the injuries complained of. That the appellant's switch leads in a westwardly direction from the point where the accident occurred to its siding and storehouse on the east side of Broadway, and that this switch track runs on a very steep grade to defendant's warehouse on the east side of Broadway. That the defendant maintained a warehouse on the east side of Broadway in the city of St. Louis and had switch tracks along the east side of its building. The switch track in question connected with its warehouse and ran in an easterly direction over a network of switch tracks or spur tracks and connected with the main track of the Iron Mountain railroad. This switch track was used in connection with defendant's business, and cars were pushed back and forth from defendant's warehouse to different points. These switch tracks at the Broadway end were some seven feet over the part where they connected with the main line of the Iron Mountain railroad. The evidence tended to show that the only proper way of handling a loaded car from appellant's siding to the main track where the accident occurred was by use of an engine to control it and that it could not safely be handled in any other way. That there was a derailing switch located about six feet from the main track, but that this derailing switch was not properly located and was not far enough away from the main track to be operated in safety; that in order to be operated safely, it should have been thirty or forty feet from the main track because of the steepness of the grade of the track leading up to appellant's platform or siding. That there was danger if a car should get loose at the west end of the switch track near appellant's establishment because it would run down the switch track and collide with any engine or train that...