Robinson v. St. Louis & S. F. R. Co.

• Decision Date: 23 June 1908
• Citation: 133 Mo. App. 101,112 S.W. 730
• Parties: ROBINSON v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

112 S.W. 730

133 Mo. App. 101

ROBINSON v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

June 23, 1908.

Rehearing Denied October 6, 1908.

1. MASTER AND SERVANT — INSTRUCTIONS — PLEADINGS AND ISSUES.

In an action for injuries to a railway employé while loading trucks on a flat car, an instruction predicating a recovery on the fact that plaintiff was injured while performing his duty under the direction of his foreman, and while at his place of duty coemployés or the foreman negligently caused the trucks to fall on him, was proper under the fellow servant act, as authorizing a recovery, if the injury was caused either by the negligence of a fellow servant or by the combined negligence of a fellow servant and the foreman, and was within a petition alleging that the injuries were sustained in consequence of the negligence of the vice principal and colaborers.

2. SAME.

An instruction, in an action for injuries to a railroad employé while loading trucks on a flat car, authorizing a recovery if the employer failed to supply sufficient appliances for loading the trucks, etc., was within a petition alleging the failure of the employer to furnish the employé with reasonably safe appliances with which to do the work.

3. PLEADING—PETITION—DEFECTS.

The defect that a petition sets forth in separate paragraphs in one count two causes of action appears on its face, and under Ann. St. 1906, § 598, must be taken advantage of by demurrer.

4. SAME—WAIVER.

Under Ann. St. 1906, § 602, a defendant, failing to demur to a petition setting forth two causes of action in separate paragraphs of one count, waives the defect.

5. MASTER AND SERVANT—INJURIES TO SERVANT—ACTIONS—"FELLOW SERVANT."

A petition, in an action for injuries to a railroad employé while loading trucks on a flat car, which alleges that the vice principal and a fellow servant of plaintiff negligently caused the trucks to fall on the employé by permitting the blocks behind the wheels to fall from their proper positions, etc., shows that the vice principal is but a "fellow servant," engaged in the performance of the duties of a laborer, within fellow servant act (Ann. St. 1906, § 2875), declaring that persons engaged in the common service of railroads, and working together at the same time and place, are fellow servants.

6. SAME—FELLOW SERVANTS.

Where the negligent act of a foreman complained of was not done in the exercise of his authority, but as a colaborer at the time with those under his control, his act is that of a fellow servant, and not that of a vice principal.

7. SAME—EVIDENCE—INSTRUCTIONS—APPLICABILITY.

Where, in an action for injuries to a railroad employé while loading trucks on a flat car, the evidence showed that the accident was the result of the negligence of a fellow servant in doing a particular act, an instruction that, if the blocks used were reasonably safe, and at the time of the accident were placed behind the trucks in the usual manner, and the trucks ran over the blocks and down the skids, etc., there could be no recovery was properly refused.

8. SAME—INJURY TO SERVANT—NEGLIGENCE—EVIDENCE—ADMISSIBILITY.

Where, in an action for injuries to a railroad employé while loading trucks on a flat car, the evidence showed that the usual methods employed by other railroad companies to load trucks were either with a cable and engine or with a derrick, evidence of such methods, and that they were safer than the method adopted by the employer, was admissible to show negligence.

9. DAMAGES—PERSONAL INJURIES—EXCESSIVE DAMAGES.

A verdict for $4,500, for the substantial loss of the use of an arm of a person 40 years old, and for injuries impairing his health, rendering him unable to dress himself, and causing him constant physical pain, with no hope of relief, is not excessive.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by William Robinson against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Moses Whybark, for appellant. Pierce & Reeves, for respondent.

BLAND, P. J.

Plaintiff, on January 6, 1906, was injured while assisting a crew of men to load trucks on a flat car for defendant at Hayti, Mo. The action is to recover for the resulting damages. The petition is in one count, but sets forth two distinct assignments of negligence, one of commission as follows: "While plaintiff was working as a common laborer, and employed by defendant, engaged in the work of operating its railroad in Pemiscot county, Mo., under the orders, direction, and immediate supervision of defendant's foreman, or overseer, and, while in the line of his duty, he, with other employés of defendant, were engaged in loading large and heavy trucks, or parts of cars, on a flat and open car, in Hayti, in said county; the said car being on one of defendant's switch tracks in the corporate limits of Hayti. That the trucks were of iron or steel, and weighed several thousand pounds each, and the mode adopted for loading them was to place the ends of two rails, or skids, some 20 feet in length, on the end of the flat car, which was about 5 feet in height, and the other ends of the skids on the rails of the railroad track, then rolling, pushing, and pulling the trucks upon and along the skids on to the flat car. While he was assisting his coemployés in loading the trucks in that way, and under the supervision of his foreman, who was the vice principal of defendant, and his coemployés, the defendant's said foreman and vice principal and coemployés and colaborers negligently, carelessly, and recklessly permitted and caused one of the trucks to fall and roll against and upon plaintiff, inflicting serious and permanent injuries on his left breast, left side, and back, and ribs of his left breast, and left shoulder and collar bone, thereby causing his left arm and shoulder to become permanently stiff and useless. That at the moment he was injured he was between two skids immediately behind the truck, which had been rolled or shoved up the skids to about their middle, and he was where it was his duty to be, and he was in the act of catching or fastening a hook to the truck for the purpose of drawing and pulling it on to the flat car. Blocks or scotches had been placed on the skids, immediately behind the wheels of the trucks, to prevent it from rolling back or falling; and the said vice principal and one or more of plaintiff's colaborers or fellow servants were, at the moment the plaintiff was in the act of fastening the hook, holding the scotches in their proper places behind the wheels of the truck, as it was their duty to do, when suddenly and without a warning to or knowledge of plaintiff, the vice principal and colaborers carelessly removed the scotches from their proper places, and negligently permitted them to move and fall from their proper position behind the wheels of the truck, and thereby causing the truck to fall and roll upon plaintiff, and inflicting upon him the said injuries." The other assignment of negligence (of omission) is as follows: "That it was the duty of defendant to furnish plaintiff and his coemployés with reasonably safe, sufficient, and proper machinery to load the trucks, but it neglected to do so, and thereby caused him to receive his injuries; that the ordinary and customary way and manner of loading these trucks on flat cars was by the use of a derrick or wrecker, and this renders the loading of trucks reasonably safe, while to so load without a wrecker renders said labor and work very dangerous and unsafe; that defendant and its vice principal negligently and recklessly ordered and required plaintiff and his colaborers to so load, or attempt to load, said trucks without thus providing them with a wrecker, thereby causing the injuries aforesaid; that the injuries complained of were not within the ordinary risk of his employment; that the dangers incident to the loading of said trucks in the way and manner adopted by the defendant on this occasion were known to the defendant, but were wholly unknown to plaintiff, and plaintiff, when injured, was exercising ordinary care." The answer was a general denial and a plea of contributory negligence. On the threshold of the trial, and at the close of plaintiff's evidence, defendant moved that plaintiff be required to elect upon which cause of action or assignment of negligence he would rely. The court overruled the motions. Plaintiff was employed by defendant as a car repairer and blacksmith, and had never loaded trucks until the morning of the day he was injured. Pat Murray, who was a section foreman, had charge of loading the trucks, and plaintiff and one or two other car repair men were ordered by the boss to assist the section gang. Defendant's statement of the facts, with the corrections and additions to follow, will give a correct history of the case.

The statement is as follows: "These trucks consisted of two pair of car wheels of standard gauge 4 feet 8½ inches, weighing from 3,000 to 5,000 pounds. The method employed to load these trucks was two skids, about 6×8, and about 20 feet in length, bolted together at each end and in the middle with rods. One end of the skids was placed on the end of the car, and the other down on the track, and fit the track. A block and tackle was fastened on top of the flat car, and a rope with hooks at the end hooked over the axle, and by means of the block and tackle the trucks were pulled along the skids up on the car by men on the car; and, as they would pull the trucks, they would scotch them, and then catch a new hold, and scotch and pull again. Pat Murray and Charles Martin were on the ground attending to the scotching, Murray on one side of the skids, and Martin on the other, and plaintiff and George Lawhorn were also on the ground. Keenan was on the ground between the trucks and the end of the flat car, attending to placing the hook around the axle. The...