Orendorff v. Terminal R. Ass'n

• Decision Date: 02 January 1906
• Citation: 92 S.W. 148,116 Mo. App. 348
• Parties: ORENDORFF v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

92 S.W. 148

116 Mo. App. 348

ORENDORFF v. TERMINAL R. ASS'N OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

January 2, 1906.

1. MASTER AND SERVANT — STATUTES — SERVANTS OPERATING RAILROAD—WHAT CONSTITUTES—FELLOW SERVANTS.

An employé of a railroad company, engaged in trucking freight from a warehouse to a freight car, is within the protection of Rev. St. 1899, § 2873, making every railroad corporation liable for all injuries to a servant while engaged in the work of operating the railroad by reason of the negligence of any other servant.

2. DAMAGES — PERSONAL INJURIES — EXCESSIVE DAMAGES.

Where an injury caused plaintiff to lose less than $300 worth of wages, but he sustained a permanent impairment of the free use of one leg, and the injury was a permanent source of occasional pain, a verdict for $1,500 was not excessive.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Lewis Orendorff against the Terminal Railroad Association of St. Louis. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The south side of defendant's warehouse, in the city of St. Louis, is about 1½ blocks in length, and parallel with it are two railroad tracks known as tracks Nos. 1 and 2. A platform is built out near track No. 1, on a level with the floors of cars. Cars to be loaded from the warehouse are placed on these tracks, and the freight is conveyed to them on hand trucks. The platform is connected with cars on track No. 1 by a small steel bridge, and the intervening space between opposite cars on tracks Nos. 1 and 2 is bridged in the same manner. On September 5, 1903, plaintiff, then in the employ of defendant, was assisting in conveying freight from the warehouse to a car on track No. 2. His evidence is that, after taking a large glass from the truck and depositing it in the car on said track, he and two other employés started to walk back to the platform through a car on track No. 1; that both ends of this car were loaded with boxes even with the door lines and about halfway to the ceiling; that his two companions preceded him and reached the platform, but before he could do so the car was struck by an engine and cars operated by the defendant's employés with such force as to cause the boxes in said car to fall; that they fell upon him and knocked him down, a large, heavy one falling upon his left leg, breaking both bones a few inches above the ankle. The evidence is that it was the uniform practice of the defendant to give warning whenever the cars being loaded were to be disturbed, by bringing in an engine, in time for the laborers to get out of the cars and remove the bridges. Plaintiff testified that he heard no warning before he felt the shock and was knocked down. Several witnesses in his behalf testified that no warning was given. These witnesses and plaintiff further testified that the shock, noise, and concussion caused by the engine striking the car was unusual and very severe. The evidence for defendant shows that the car on which plaintiff was hurt was not loaded to the door lines; that plaintiff was found three or four feet east of the door line, and, when asked what he was doing in that part of the car, said he was trying to hold up the box that fell upon him. Defendant's evidence also shows that warning was given and repeated in a loud tone of voice, by plaintiff's foreman, so near plaintiff that he must have heard it, and that the warning that the engine was coming on track No. 1 was given in ample time to have enabled plaintiff to get out of the car before it was struck by the engine; and also, as was the custom after a warning was given, that the bridges had been withdrawn and were on the platform. The evidence for the defendant further shows that the engine did not strike the car with unusual force and did not cause an unusual shock or jar. Plaintiff's evidence shows that some of the bridges connecting the cars on the two tracks fell in between them, and that the car on track No. 1, in which plaintiff was hurt, was shoved back about half a car length. Plaintiff denied that he made the statement that he was trying to hold up the box that fell upon him, and testified that he was near the door when knocked down, and not toward the east end of the car. The jury found for plaintiff and assessed his damages at $1,500. After an unavailing motion for new trial, defendant appealed.

McKeighan & Watts and Wm. R. Gentry, for appellant. A. R. Taylor, for respondent.

BLAND, P. J. (after stating the facts).

1. At the close of plaintiff's evidence, and again at the close of all the evidence, defendant offered an instruction in the nature of a demurrer to the evidence. The refusal of the court to grant this instruction is assigned as error. That the plaintiff and the...