Perryman v. Missouri Pac. R. Co.

• Decision Date: 04 September 1930
• Citation: 31 S.W.2d 4,326 Mo. 176
• Parties: Myrtie E. Perryman, Administratrix of Estate of J. D. Perryman, v. Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

31 S.W.2d 4

326 Mo. 176

Myrtie E. Perryman, Administratrix of Estate of J. D. Perryman, v. Missouri Pacific Railroad Company, Appellant

Supreme Court of Missouri

September 4, 1930

Appeal from Butler Circuit Court; Hon. Charles L. Ferguson Judge.

Affirmed.

Thomas J. Cole, Arnot L. Sheppard and J. C. Sheppard for appellant.

(1) The court erred in allowing the plaintiff's expert witnesses to testify as to their opinions based on what said experts may have heard the other witnesses say as to the manner of jacking up and cribbing the car; and also in allowing them to testify to their opinions based on what they themselves would have done in relation to the cribbing of the car themselves and also by allowing them to testify to a method which they regarded as absolutely safe instead of a method of cribbing the car which was reasonably safe. D'Arcy v. Lead Co., 155 Mo.App. 272; State v. Klinger, 46 Mo 224; Livery Co. v. Railroad, 105 Mo.App. 556; Turner v. Haar, 114 Mo. 335; Neudeck v. Grand Lodge, 61 Mo.App. 97; Hartman v. Meuhlebach, 64 Mo.App. 565; Keys Marshall Bros. Liv. Co. v. Railroad Co., 105 Mo.App. 556. (2) The court erred in overruling defendant's demurrer to the evidence at the close of the plaintiff's case and at the close of the whole case because the evidence fails to show that the defendant was negligent in failing to furnish Perryman a reasonably safe place to work. (a) It is the duty of the master only to use ordinary care to furnish a servant a reasonably safe place to work. 39 C. J. 313, sec. 442; Baltimore A. & P. Railroad Co. v. Mackey, 157 U.S. 72. (b) It is not the master's duty to furnish the newest, safest and best machinery, appliances and places for work, but his obligation is met when he furnishes such as are reasonably safe and suitable for the purposes had in view. 39 C. J. 329, sec. 449; H. D. Williams Cooperage Co. v. Headrick, 159 F. 680; Brands v. Car Co., 213 Mo. 707; Bohn v. Railroad, 106 Mo. 433; Coin v. Lounge Co., 222 Mo. 505; Christmer v. Bell Tel. Co., 194 Mo. 208. (3) The court erred in giving to the jury plaintiff's instruction No. 1, because it is not based upon the evidence and because there was no evidence to support it. Instructions must be based upon the evidence. Wagner v. Railroad Co., 209 Mo.App. 221, 291 Mo. 206; McCauley v. Brewing Co., 300 Mo. 638; Vance v. Anderson, 215 Mo.App. 325; Evans v. Klusmeyer, 301 Mo. 352; McKinsey v. Randolph, 258 S.W. 126. (4) The court erred in refusing to give to the jury Instruction No. 3-A, for the reason that the evidence shows that the trucks were not rolled from under the car while Perryman was blocking the car, nor does the evidence show he was ordered to go under the car while the trucks were removed. Authorities under Point 3. (5) The court erred in giving to the jury plaintiff's Instruction 5, because it applies the wrong measure of damages. Kans. City Southern Ry. Co. v. Leslie, 238 U.S. 599; 2 Roberts Federal Liabilities of Carriers, 1076; Ches. & Ohio Railroad v. Kelly, 241 U.S. 485; Ches. & Ohio Railroad v. Gainey, 241 U.S. 494.

Sam M. Phillips for respondent.

(1) Defendant adopted a dangerous method of doing a work that could have been performed in absolute safety. It jacked up the south end of a large, heavy, unwieldy, loaded and iced refrigerator car and attempted to hold it in place by building a cribbing under the whale-belly, a center beam eighteen inches wide running lengthwise underneath the car. The evidence established the fact that the proper method of cribbing the car would be, after jacking it up, to build a cribbing of equal height or place horses furnished for the purpose under each side of the car, which method would prevent the car from becoming top-heavy and falling as it did. When defendant adopts a dangerous method of having its work done when a safe method is readily available and at hand, the question of its negligence in so doing is for the jury. Baker v. Scott Milling Co., 20 S.W.2d 494; Hosheit v. Lusk, 177 S.W. 712, 190 Mo.App. 413; Boamp v. Ry. Co., 23 Mo.App. 270; Schmidt v. Union, etc., Co., 3 S.W.2d 384; Timmerman v. St. L., etc., Co., 1 S.W.2d 791; Bennett v. Tractor Co., 238 S.W. 144, 209 Mo.App. 619; Hildman v. Am. Mfg. Co., 294 S.W. 99; Martin v. Union Pacific, 253 S.W. 513, 204 Mo.App. 307; Clark v. Engineering Co., 263 S.W. 500. (2) The testimony of the seven expert witnesses that the method of doing the work in question adopted by defendant and which resulted in the death for which this action was brought, was dangerous and not the proper or customary method of doing such work was properly admitted. Busch, etc., Co. v. Const. Co., 276 S.W. 614, 310 Mo. 419. See also to the same effect: 22 C. J. 656, sec. 755; Neely v. Chicago, etc. Ry. Co., 14 S.W.2d 972; Schmidt v. Union, etc., Co., 3 S.W.2d 384; Meily v. Ry. Co., 114 S.W. 1020; 22 C. J. 657, sec. 757. (3) The witnesses who were present in the court room and who heard the witnesses describe how the car in question was blocked, could give their opinion on the facts they had heard sworn to, as well as if the same facts were presented to them by means of a hypothetical question. Meily v. Ry. Co., 215 Mo. 567, 114 S.W. 1013; Millirous v. Railroad Co., 176 Mo.App. 39, 162 S.W. 1069; 2 Jones, Commentaries on Evidence, 2334; note 7; Chicago v. Didier, 227 Ill. 571; Willard v. St. Paul etc. Co., 116 Minn. 183; State v. Toney, 15 S.C. 409; Bowen v. Huntington, 35 W.Va. 682. (4) The question of contributory negligence is not in this case. Contributory negligence is an affirmative defense and to be available to a defendant must be pleaded. Kleinlein v. Foskin, 13 S.W.2d 648. (5) The plaintiff was not bound by the testimony brought out on cross-examination of an unfavorable witness, who was the employee of the defendant who was guilty of the negligence that caused Perryman's death and who was still in the employ of the company at the time of the trial. Vanausdol v. Bank of Odessa, 5 S.W.2d 109; Maginnis v. Mo. Pac., 187 S.W. 1165, 268 Mo. 667. (6) The trial court did not commit error in refusing defendant's withdrawal Instruction 3-A. It is not reversible error to refuse withdrawal instructions. Clift v. Frisco, 9 S.W.2d 972; Siberell v. Railroad, 9 S.W.2d 912; Pappen v. Wagner etc., 2 S.W.2d 199. (7) Plaintiff's instruction on the measure of damages correctly declares the law and was taken from the case of Holman v. Railroad, 278 S.W. 1007.

OPINION

Atwood, P. J.

This is an appeal from a judgment for damages on account of the death of J. D. Perryman, who while working for defendant Missouri Pacific Railroad Company as a car repairer, was killed in defendant's yards at Poplar Bluff, Missouri, on May 7, 1927, when an iced refrigerator car loaded with onions fell upon him. The petition was in conventional form and the answer was a general denial.

The evidence showed that this car was being used in interstate commerce, enroute from Odin, Texas, to St. Louis, Missouri. At Poplar Bluff the car was cut out of the train and placed on what is referred to as defendant's rip track on account of one or more flat wheels on one of its trucks. The repair job was one that required haste, and two crews were put on the job. The car was run on the rip track, which extended in a north-and-south direction, and only a short distance from defendant's supply house, where all repair supplies were kept. The wheels on the truck on the south end of the car were the ones giving the trouble, and in order to remove them it was necessary to jack up the south end of the car for a distance of eight inches or more, for the purpose of lifting the king bolt, so the trucks could be rolled southward and from under the car. The car was of the whale-belly type, that is, it had a long metal beam about eighteen inches wide, consisting of two pieces, which extended underneath the car from one end to the other presenting a level portion for a distance of twelve to fourteen feet and gradually sloping to a feather edge at each end. The method of removing wheels from cars of this character, under the foreman then in charge and pursuant to his orders and directions, as applied to this particular car, was to jack up the south end, by placing a jack under the southeast corner and one under the southwest corner of the car, and raising it to the height desired, by operating both jacks at the same time. It was Perryman's duty to take his sledge hammer and other necessary tools and go under the car and disconnect certain rods which, with the aid of the king pin, held the trucks of the car in place. Pursuant to his foreman's orders, either given at the time or prior thereto, he went under the car and disconnected the rods in question. Instead of using horses by placing them under both sides of the car or cribbing under both sides of the car to support it and keep it from falling when the trucks were removed, defendant adopted the method of building but one cribbing to hold the car, and that under the whale-belly toward the south end of the car. Experts testified that cribbing the car in this way was not customary and was improper and dangerous, and that either horses should be used or cribbing built under each side of the car. The thing that would render this method of cribbing dangerous would be something connected with the car itself and which would not be open to the observation of the men constructing the cribbing. In order for this method to be effective and hold the car in place, everything would have to be just right. If the car was not properly balanced, or if the load had shifted, or if the ice had melted more on one side than on the other, or if the whale-belly was uneven or loose, or if the back wheels moved, then the car was likely to fall, as in this instance it did. Defendant's foreman ordered...