Removich v. Bambrick Bros. Const. Co.

• Decision Date: 04 January 1915
• Docket Number: No. 16995.,16995.
• Parties: REMOVICH v. BAMBRICK BROS. CONST. CO.
• Court: Missouri Supreme Court

173 S.W. 686

264 Mo. 43

REMOVICH v. BAMBRICK BROS. CONST. CO.

No. 16995.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

Rehearing Denied February 23, 1915.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by Adolph Removich against the Bambrick Bros. Construction Company. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Action for personal injuries on appeal from the circuit court of the city of St. Louis, which court having sustained a motion to make the below petition more definite and certain, on plaintiff's refusal to do so, sustained defendant's demurrer thereto. Plaintiff has appealed in due form.

The petition, caption, and merely formal parts, allegation of permanency of injuries and prayer for judgment omitted, is as follows:

"Plaintiff, by leave of court first obtained, files this, his amended petition, and for cause of action against defendant states: That defendant is, and was at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the state of Missouri and engaged in construction work, and more particularly in digging for and building in a concrete sewer in the city of St. Louis, Mo., at or near the intersection of Ashland and Arlington avenues, in said city.

"That on the 24th day of May, 1911, defendant was engaged in digging for and building in said sewer at or near said intersection, and for that purpose was then and there engaged in removing earth and soil from the bottom of a large trench preparatory to building said sewer therein. That defendant used a hoisting machine for the purpose of lifting said earth and soil from the bottom of said trench, and, after said soil and earth had been lifted by steam power in buckets to above the surface of the street, said soil and earth was then conveyed in said buckets by carrier running upon a steel track to the ground eastwardly from where said dirt was being removed and to a point where said concrete sewer had been built into said trench, and then and there said dirt was being dumped upon said concrete sewer thus laid and thereby used to fill up said excavation above said sewer.

"That for the purpose of lifting said earth and soil from the bottom of said trench, as aforesaid, defendant used large heavy steel or iron buckets, to which were attached iron or steel cables, which said cables were pulled and drawn by steam power.

"That on said 24th day of May, 1911, plaintiff was employed by defendant as a laborer to dig in the bottom of said trench and to fill up said buckets. That at or about 2 o'clock on the afternoon of said 24th day of May, 1911, when plaintiff was thus engaged, and when one of said buckets over and above his head was being conveyed by said steam power, by reason of the carelessness and negligence of defendant, the iron or steel cable attached to said bucket broke, causing said bucket to fall upon the plaintiff, thereby inflicting a comminuted fracture of his right arm, inflicting a multiple fracture of his right leg, wrenching his left foot, fracturing three of his right ribs, and injuring his lungs."

The motion to make more definite and certain was specifically leveled at the last paragraph of the above petition. Since such motion was in proper form, and no point is made thereon, we need not cumber the record with it. Upon the trial court's sustaining the motion to make more definite and certain, and upon plaintiff's neglect and refusal to do so, defendant, a few days thereafter, but at the same term, successfully demurred on the ground that the petition did not state facts sufficient to constitute a cause of action against defendant. Plaintiff refused to further plead, and final judgment followed.

Joseph A. Wright, of St. Louis, for appellant. Holland, Rutledge & Lashly, of St. Louis, for respondent.

FARIS, J. (after stating the facts as above.

It is plain that there is but one question in the case. We might discuss it from the point of view of the action of the court nisi in sustaining the motion to require plaintiff to make his petition more definite and certain; or it may be treated as alleged error arising from sustaining the demurrer to the petition. If the allegations of negligence were sufficient, then the court erred in requiring plaintiff to make these allegations more definite and certain. In discussing the matter in issue, we will then consider this point. We are not called on to determine whether defendant, in order to save the point for ruling, was required first to move that the court order plaintiff to make his petition more definite and certain, as a condition precedent to demurring. Both points are in the case; a conclusion reached upon either disposes fully of the other; and we will therefore leave any mooted question of procedure till a discussion shall become necessary and not academic.

But if the court nisi was right in sustaining defendant's said motion, and thereby impliedly ordering plaintiff to so amend his petition as to make it more definite and certain, then, upon plaintiff's refusal to do so, it was proper to sustain the demurrer.

It is conceded by defendant that the question raised turns upon the sufficiency of the last paragraph of plaintiff's petition. It may even be said to be plain that it turns upon whether one clause contained in this paragraph, the same being the sole charge of negligence in the petition, is sufficient to charge a master with negligence, under the law of master and servant. This is the clause which contains the only specification and the sole allegation of negligence to be found in the petition, to wit, "by reason of the carelessness and negligence of defendant."

Plaintiff contends that, under the facts in this case as they are set forth in the petition (i. e., that the iron or steel cable broke and the bucket fell and plaintiff was hurt thereby), it falls within the doctrine of res ipsa loquitur; defendant insists that it does not. To this contention, in the broad sense in the last analysis, the case resolves itself, involving the above doctrine in its strict and distinctive interpretation, which allows a presumption of negligence to arise from the mere fact that an accident happened when coupled with the allegation of its bare, physical cause, wholly unassisted by any circumstances tending to show any fault of omission or commission on the part of the master, as the responsible human cause of the accident in question. This rule has long been applied to pleading negligence in personal injury suits for damages accruing to passengers on common carriers, and its sufficiency in such ordinary case has become so well settled as to be no longer in question. Dougherty v. Missouri Ry. Co., 81 Mo. 325, 51 Am. Rep. 239; Furnish v. Railroad, 102 Mo. 438, 13 S. W. 1044, 22 Am. St. Rep. 781; Sharp v. Kansas City, etc., Ry. Co., 114 Mo. 94, 20 S. W. 93; Clark v. Chicago, etc., Ry. Co., 127 Mo. 197, 29 S. W. 1013; Och v. Railroad, 130 Mo. 27, 31 S. W. 962, 36 L. R. A. 442; Partello v. Railroad, 240 Mo. 122, 145 S. W. 55; Nagel v. United Rys. Co., 169 Mo. App. 284, 152 S. W. 621. Likewise this rule has been applied in favor of mere strangers, whose business or duties require them to go about cars and railroad tracks. Tateman v. Railroad, 96 Mo. App. 448, 70 S. W. 514.

It will not do to state broadly or dogmatically that the doctrine of res ipsa loquitur is never applicable as between master and servant. There are isolated cases wherein the nature of the accident prima facie indicates negligence of the master to a degree making rebuttal proof on his part necessary. McGrath v. Railroad, 197 Mo. 97, 94 S. W. 872; Hamilton v. Railroad, 123 Mo. App. loc. cit. 620, 100 S. W. 671; Klebe v. Distilling Co., 207 Mo. loc. cit. 487, 105 S. W. 1057, 13 L. R. A. (N. S.) 140, and cases cited; Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149; Jones v. Railroad, 178 Mo. 540, 77 S. W. 890, 101 Am. St. Rep. 434; Stoher v. Railroad, 91 Mo. 509, 4 S. W. 389; Kelley v. Railroad, 105 Mo. App. 365, 79 S. W. 973; Folk v. Schaeffer, 186 Pa. 253, 40 Atl. 401; Turner v. Haar, 114 Mo. 335, 21 S. W. 737; Doherty v. Booth, 200 Mass. 522, 86 N. E. 945; Fitzgerald v. Southern Ry. Co., 141 N. C. 530, 54 S. E. 391, 6 L. R. A. (N. S.) 337, and cases cited in note. Naturally, in the absence of the adventitious aid of fellow-servant statutes, which have very greatly broadened the field of the application of this doctrine (Jones v. Railroad, 178 Mo. loc. cit. 545, 77 S. W. 890, 101 Am. St. Rep. 434), such cases are, of necessity, comparatively rare. To make out a case for the application of this doctrine, the facts relied on ought to be such as reasonably to exclude all defensive inferences attributable by operation of law to the negligence of the plaintiff, or that of a fellow servant (absent a fellow-servant statute), defects in the lethal instrumentality which are latent, or so recent in happening as to afford no reasonable opportunity for their discovery, lack of causal connection, and the assumption of the usual hazards of the employment. Jones v. Railroad, supra; Folk v. Schaeffer, supra; Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S. E. 443; Fitzgerald v. Railroad, supra, and note with cases cited.

Do the facts in the instant case so speak as inevitably to charge prima facie negligence from the bare statement that the wire cable broke and the bucket fell and the defendant was hurt? We do not think so, nor do we think that the adjudged cases in this state or elsewhere so hold by even a respectable weight of authority.

In the case of Oglesby v. Railroad, 177 Mo. 272, 76 S. W. 623, a case in which a train was derailed and an employé hurt, and in which train a car was found with sills broken from rot and "dotiness," and which may, we think, upon close examination and logical criticism, be found to show the phase of lack of causal connection, it was nevertheless said:

"For plaintiff in this case the...