Peters v. Kansas City Rys. Co.

• Decision Date: 10 May 1920
• Docket Number: No. 13537.,13537.
• Citation: 224 S.W. 25,204 Mo. App. 197
• Parties: PETERS v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

224 S.W. 25

204 Mo. App. 197

PETERS v. KANSAS CITY RYS. CO.

No. 13537.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

Action by Thomas Peters against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Ben T. Hardin, of Kansas City, Mo., for appellant.

Rogers & Yates, of Kansas City, Mo., for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,500, and defendant has appealed.

Defendant maintained at its power house at Second and Grand avenue, in Kansas City, Mo., a coal crusher used to crush coal for use there. On September 1, 1913, plaintiff was directed to work at said crusher. The work that plaintiff was required to do was to use an iron bar in aiding the coal in its passage through the crusher and to keep the crusher from becoming clogged. Plaintiff had worked little at the crusher before said date, and he testified that he had but very little experience with it; that he had worked two or three days at it, "about a half or an hour each time."

The crusher consisted of a hopper about 3 feet square by 2 1/2 feet high. The coal was crushed by a revolving roller, which was about 21 inches below the top of the hopper. This roller had a number of lugs on it which crushed the coal as it passed down between the roller and the side of the hopper. The roller revolved from north to south. Two men stood on the north side of the hopper, each with an iron bar which they used as indicated supra. When a chunk of coal appeared that was too large to pass through the roller the men would stir the coal, punching the chunks, and breaking them with the bar whenever they could. If the iron bar should be pushed down far enough to come in contact with the lugs the bar would be caught and jerked or thrown. There was no danger in working at the crusher when it was not overloaded with coal, as the workman could see the roller and know where to place the bar he was using. When the crusher was "overloaded" he could tell nothing about it. Plaintiff, with his fellow workman, Biggs, was working at the crusher on the morning of the day mentioned. The coal had been coming down into the crusher too fast; it was falling over the top of the crusher, and had covered up the roller so that plaintiff and his companion could not see it. His companion first called the foreman's attention to the condition, and the foreman replied, "Go ahead, there is no danger there." The coal continued to come into the crusher so fast that plaintiff could not see where his bar was going, and he complained to the foreman about the condition. The foreman answered him in the same way that he had answered his companion, Biggs, that "there wag no danger, go ahead." Shortly after plaintiff had protested about the condition of the crusher and before the crusher had gotten clean, the iron bar that plaintiff was using caught on one of the lugs of the roller, and the end of the bar violently struck plaintiff in the abdomen, severely injuring him.

Defendant's first point is that the judgment cannot stand for the reason that the evidence shows that the power house at which plaintiff was working generated electricity for the operation of an electric railway engaged in interstate commerce, as the current from the power house was used in part for the propulsion of cars from Kansas City, Mo., to Kansas City, Kan., and that the Federal Employers' Liability Act (U. S. Comp St. §§ 8657-8665) applies, and that the petition states no cause of action under such act. The coal that plaintiff was crushing was used to generate this electricity.

The petition alleges that defendant was doing business as a street railway corporation in Kansas City, Jackson county, Mo., "and for purpose of operating said street railway system * * * owned and operated a certain coal crusher for the purpose of crushing coal." The answer consisted of a general denial and a plea of common-law contributory negligence. The answer contained no plea that plaintiff and defendant were engaged in interstate business. The instructions on both sides show that the case was submitted under the common law of Missouri, and not under the Federal Employers' Liability Act. One of defendant's instructions told the jury that, if plaintiff was guilty of any contributory negligence, the verdict should be for defendant.

The evidence is not as plain as it might be in showing as to exactly what kind of an railway defendant was operating, whether exclusively a street railway for passengers, or that it, in addition, operated interurban, freight, or express cars. The only evidence on the subject is that it operated "street cars." Now, ordinary street cars (and not interurban or suburban cars) operated on streets of cities for the carriage of passengers do not come under the Federal Employers' Liability Act. Omaha Street Ry. v. Int. Com. Comm., 230 U. S. 324, 33 Sup. Ct. 890, 57 L. Ed. 1501, 46 L. R. A. (N. S.) 385; Kansas City Ry. v. McAdow, 240 U. S. 51, 54, 36 Sup. Ct. 252, 60 L. Ed. 520; Spokane, etc., Rd. Co. v. United States, 241 U. S. 344, 36 Sup. Ct. 60 L. Ed. 1037; Spokane, etc., Rd. Co. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125; Washington Ry. & Elec. Co. v. Scala, 244 U. S. 630, 638, 37 Sup. Ct. 654, 61 L. Ed. 1360. From the evidence we fail to find that defendant was operating such a street railway as comes within the Federal Employers' Liability Act.

It is contended that the petition fails to state a cause of action because there is no of any knowledge on defendant's prior to the accident, of any danger in connection with the work which plaintiff was performing.

There was no objection made to the petition except an objection to the introduction evidence, a method of attacking a petition that is not looked upon with favor. Under the circumstances we are required to give a liberal construction to the petition, and, if it states any cause of action whatever, we must hold it good, although it may be defectively stated.

The petition alleges that, "while plaintiff was performing his said duties, the defendant carelessly and negligently caused the hopper of said crusher to be overloaded with coal, * * * and that thereupon plaintiff complained to plaintiff's said foreman and vice principal of the danger of performing said work so required of him by reason of the overloading of said hopper as aforesaid." If defendant caused the hopper to be overloaded, and plaintiff told defendant's agent of the danger of performing the work by reason of its being overloaded, then defendant was aware of the danger connected with the work. Cardwell v. Chi. G. W. Ry. Co., 90 Mo. App. 31; Bellamy v. Whitsell, 123 Mo. App. 610, 100 S. W. 514; Clippard v. Transit Co., 202 Mo. 432, 101 S. W. 44; Johnson v. Mo. Pac. Ry. Co., 96 Mo. 340, 9 S. W. 790, 9 Am. St. Rep. 351; Crane v. Mo. Pa. Ry. Co., 87 Mo. 588.

It is next insisted that the court erred in permitting plaintiff to testify that De Krauff was his foreman, and that plaintiff relied upon and believed what the foreman told him in regard to there being no danger connected with the using of the bar with the overloaded crusher. In tins connection defendant insists that plaintiff neither alleged nor proved that there was any danger existing at that moment, nor that defendant had any knowledge of such danger. From what we have said, these contentions must be ruled against the defendant.

There is further objection that it was not shown that the foreman De Krauff had any authority to reassure plaintiff. There is no objection in the record, at the page cited by defendant in connection with this point, going to this latter objection now made by the defendant. The objection was that it was incompetent, irrelevant, and immaterial. This, under the circumstances, was no objection at all. Kelly v. American Cent. Ins. Co., 192 Mo. App. 20, 178 S. W. 282. The evidence was very material, and there was no objection made on the ground that the witness was stating his conclusion.

It is next insisted that the court erred in overruling defendant's objection to the testimony of plaintiff that he "heaved" blood, that he spit blood, that blood passed through his "compassities." From the record we conclude that plaintiff in using the word "compassities" meant that he passed blood in his urine. It is insisted that there is no allegation in the petition covering such injuries. The petition alleged that plaintiff's stomach, bladder, bowels, kidneys, and liver were badly sprained, injured, and bruised; that his back was bruised, sprained, and injured. There is no doubt but that the petition was broad enough to cover the matters objected to. The spitting, "heaving," and passing of blood in the urine, shortly after the injury, was evidence of the internal injuries complained of. Bergfeld v. Dunham, 202 S. W. 253; Costello v. Kansas City (Sup.) 219 S. W. 386.

It is contended that the court erred in overruling defendant's objection to a hypothetical question asked Dr. Miller. The objection to the question was that "it was not a proper hypothetical question." This kind of an objection is not sufficient to raise any point as to whether the question was proper, as the objection did not state what necessary elements were omitted or what matters the question contained that were not proved. Orr v. Bradley, 126 Mo. App. 146, 152, 103 S. W. 1149.

It is next urged that the court erred in admitting in evidence section 5968, R. S. 1879, and section 8499, R. S. 1909. It is urged in this connection that there is no evidence that plaintiff's injuries disabled him permanently. The tables contained in these sections of the statute would not be admissible unless there was such evidence. Mott v. Detroit, etc., R. Co., 120 Mich. 127, 136, 79 N. W. 3; Greer v. L. & N. R. Co. 94 Ky. 169,...