Porter v. Missouri Pac. R. Co.

• Decision Date: 19 January 1925
• Docket Number: (No. 15190.)
• Citation: 267 S.W. 964
• Parties: PORTER v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

267 S.W. 964

PORTER v. MISSOURI PAC. R. CO.

(No. 15190.)

Kansas City Court of Appeals. Missouri.

January 19, 1925.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by B. A. Porter against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Montgomery & Rucker, of Sedalia, for appellant.

Claude Wilkerson and Paul Barnett, both of Sedalia, for respondent.

TRIMBLE, P. J.

Plaintiff, a machinist's helper in defendant's shops in Sedalia, was, on November 16, 1923, injured by a heavy piston rod falling upon and crushing his foot. He brought this suit for damages and recovered judgment in the sum of $1,000, from which defendant has appealed.

The original petition designated the defendant as the "Missouri Pacific Ry. Co.," and, following the name thus given, the clerk issued summons directed to the sheriff of Pettis county, in which Sedalia is located, commanding him to summon the "Missouri Pacific Railway Company" and the, same was duly served on the defendant herein, the Missouri Pacific Railroad Company, and a return showing service on said last-named company was made. An answer and plea in abatement was filed on behalf and in the name of the Missouri Pacific Railway Company, setting up that it was not operating a line of railroad, nor did it own any shops in Pettis county on November 16, 1923, or since that time, and had no agent in said county on whom process could be served; wherefore, the action was prayed to be abated and the court's jurisdiction was questioned.

Plaintiff immediately applied for permission to amend petition and summons" by changing the name from Missouri Pacific Railway Company to the Missouri Pacific Railroad Company, the latter being the corporation sued and upon which the service was had. After a hearing on said application, permission to amend was granted and the amendment was made. (It seems that the Missouri Pacific Railway Company, as owner of the railroad and property in question, went into the hands of a receiver and at a receiver's sale in February, 1917, its property was sold to the Missouri Pacific Railroad Company, and it is the corporation which has ever since owned and is now owning and operating the road and shops in question.)

The order allowing the amendment was made over the objection of defendant's counsel, being the same counsel who had filed the plea in abatement for the Missouri Pacific Railway Company. And when the amendment was made, a plea to the jurisdiction as to defendant was filed on the ground that the court had no power to permit said amendment without service of process on defendant for that purpose. Conjoined with said plea was an answer consisting of a general denial coupled with a plea of contributory negligence in that plaintiff "negligently pushed said piston from the truck or horse in such a manner as to cause it to fall upon the plaintiff's foot," and also a plea of assumption of risk.

There is no merit in the point that reversible error inheres in the court's allowing the amendment of the name by which defendant was designated in the petition and summons. The defendant was the corporation plaintiff brought suit against, or was intending to sue, and service was had upon it, not only as appears from the sheriff's return but from the evidence under the application to amend. No service was had upon the Missouri Pacific Railway Company, and no such cause of action as alleged in the petition could have accrued against it. Process having been actually and properly served upon the defendant, and it being the right party, but sued merely by the wrong name, the amendment was proper. 31 Cyc. 468; Marsala v. Gentry (Mo. App.) 232 S. W. 1046; Green v. Strother, 201 Mo. App. 418, 421, 427, 212 S. W. 399; Parry v. Woodson, 33 Mo. 347, 84 Am. Dec. 51. See, also, Bedell v. Richardson, etc., Lubricating Co. (Mo. App.) 226 S. W. 653. The fact that in both petition and return of service a portion of the names were indicated by appropriate abbreviations makes no difference, since they do not differ essentially from words but are, like them, merely signs of thought. In re Lakemeyer, 135 Cal. 28, 66 P. 961, 87 Am. St. Rep. N. See, also, 1 C. 278-9; National Bond, etc., Co. v. Hennepin County, 91 Minn. 63, 97 N. W. 413; Ryan v. Baltimore, etc., R. Co., 60 Ill. App. 612; Ripley v. Case, 78 Mich. 126,43 N.W. 1097, 18 Am. St. Rep. 428; Converse v. Wead, 142 Ill. 132, 31 N. E. 314.

The only point made as to the merits is that defendant's demurrer to the evidence should have been sustained.

The petition, after alleging plaintiff's employment as a machinist's helper in the shops, his engagement in said work on the date above mentioned, and the fact that he was ordered by his foreman to take a large piston rod from one part of such shops to another to have it cut off with an acetylene torch, continued:

"When plaintiff had reached the place of work of the acetylene welder he ordered the rod to be leaned against a horse so that one end of the rod was on the floor of the shop and the side of the rod near the other end was leaned against such horse.

"The welder was an employee of defendant, in charge of the work of cutting off the extension, and he ordered the said rod placed in such position, that being the position he desired to have the rod placed in order to do the work of cutting off the extension. At the place where the welder worked there was a great many pieces of metal, scraps, débris, trash, and other miscellaneous materials scattered about the floor. The rod was of such great weight that it could not be lifted. After the welder had cut the extension off of the rod with an acetylene torch, it was the duty of the plaintiff, under his orders, to remove the rod to another part of the shop, and the ordinary way to do this work was to push the rod to the floor, and then place it upon a conveyance to take it to another part of the shop. Plaintiff attempted to push the rod off of the horse so that it would fall to the floor in order that it might be conveyed to another part of the shop, but when he attempted to push the rod, the horse, upon which it leaned, fell, and the plaintiff attempted to back out of the way so that the rod would not strike him, but because of debris, metal and miscellaneous materials on the floor of the shop back of him he could not move out of the way, and the rod struck him upon the foot, breaking his foot and' the bones therein and lacerating, bruising and injuring his foot.

"The injuries received by plaintiff to his foot were directly caused by the negligence of defendant."

As heretofore stated, the answer pleaded contributory negligence and assumption of risk; and the sole question is whether, under any possible view of the petition and the evidence in plaintiff's behalf, a case of liability under the law was made?

Plaintiff's witnesses consisted of himself, another machinist's helper by the name of Richardson, who worked with plaintiff in bringing the pistons to and taking them away from the "welder's station" where they were cut off by the welder with the blowtorch, and another employee by the name of Yancey Johnson.

Plaintiff had worked in the shops about a year and had worked with Richardson about six or eight months; but, according to the evidence in his behalf, he had never worked at taking piston rods to the welder's station before.

It is conceded that plaintiff and Richardson were ordered to take some piston rods from a part of the shops to the acetylene welder's station in order to have them cut off. The pistons were of steel, about nine feet long and weighed about 700 pounds each. The two men moved two pistons on low trucks to the place where the cutting was to be done. This place, or "welder's station" as it is called, was a space about 15 feet square and on it were scattered iron scraps of various kinds. An aisle ran from one end of the shop to the other along the west side of this station. On the north side was "a pile of stuff containing equalizers and stuff like that," on the west side was a "keyway machine" about 8 feet long and on the east side was a pile of junk, pieces of scrap iron, etc., the smaller stuff extending up to within 2 or 2½ feet of the horse on which the piston was put while being cut off and "small stuff scattered all around there." Plaintiff said he could not particularly describe the pieces of iron and scraps on the floor as he did not observe or notice them carefully though he says he knew they were on the floor. The stuff scattered "on the floor was supposed to be cleaned up every day, but it had not been cleaned up the day before, and was there when the injury occurred, about 9 in the morning.

When the truck arrived at the station with the pistons, the welder would not cut them off as they lay on the truck but wanted them placed on something higher. Thereupon he placed a trestle or horse in a place selected by him on his station. This horse was made of inch and a half or two inch gas pipe, with four legs of the same material, each pair of legs welded to the top or back of the horse about four or six inches from the ends of the top. The top, being of gas pipe, was, of course, round. The welder directed plaintiff and Richardson to place the pistons on the horse, that is, by letting the west end of the pistons rest on the floor and the east end to rest on the horse and project over beyond it and there be cut off. When, in obedience to the welder's directions, the plaintiff and Richardson went to lift the pistons on the horse the foreman remarked that it "didn't look safe" to put the pistonrods on that. Whereupon the welder said, "Set the horse behind this collar." There was a half-inch rounding collar on each of the pistons toward or not far from the east end, and while the two men raised each of the pistons up, the welder set the horse back or west of this collar. The horse was thus placed north and south...