Robinson v. St. Louis & San Francisco Railroad Company

• Decision Date: 23 June 1908
• Citation: 112 S.W. 730,133 Mo.App. 101
• Parties: ROBINSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

112 S.W. 730

133 Mo.App. 101

ROBINSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 23, 1908

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

Judgment affirmed.

W. F Evans and Moses Whybark for appellant.

(1) The plaintiff by his allegation made his petition clear by declaring his intent to proceed against the defendant for failure to furnish him reasonably safe appliances to do his work. Butts v. Long, 94 Mo.App. 687; Sidway v Land & Live Stock Co., 163 Mo. 342; Stillwell v Hand, 97 Mo. 579; Sexton v. Railroad, 98 Mo.App. 494; Loehr v. Murphy, 45 Mo.App. 519. (2) The plaintiff is bound by the allegations of his petition, and although the petition may contain unnecessary averments, yet, as long as the petition stands unamended, he is bound thereby. Bruce v. Simms, 34 Mo. 246; Bensieck v. Cook, 110 Mo. 182; Weil v. Posten, 77 Mo. 287. (3) The Fellow-Servant Law does not apply to an accident arising from the master's failure to furnish safe instrumentalities. This was a common law duty, and the servant always had his action against his master for causes arising from its breach. Jackson v. Mining Co., 106 Mo.App. 441. His right as fellow-servant to recover is statutory, and given to him where none existed before, and to maintain that action he must bring his case within the statute. But giving the plaintiff the full benefit of all the allegations in the petition, he did not undertake to state a cause of action for negligence under the Fellow-Servant Law; and therefore, the court erred in instructing the jury at all on that feature of the case. R. S. 1899, secs. 2873, 2875. (4) The said instructions were erroneous. Under the issues presented on this phase of the case, plaintiff was not warranted in going to the jury on a case under the Fellow-Servant Law, and the court erred in giving the instructions numbered 1, 2 and 9, because they embrace issues not involved in the petition. Roscoe v. Railroad, 202 Mo. 576; Shereman v. Transit Co., 103 Mo.App. 515. No such issue was tendered by the pleadings, and the rule is well settled that issues can not be raised or disposed of by instructions that are not made by the pleadings. Koenig v. Railroad, 173 Mo. 724; Nugent v. Milling Co., 131 Mo. 257; Merrett v. Poulter, 76 Mo. 240; Maffatt v. Conklin, 35 Mo. 435. Issues cannot be tendered by the evidence in a case. State ex rel. v. Land Co., 161 Mo. 673. (5) The court erred in permitting the plaintiff to show, by the witness D. O. Cathay, that machinery had been ordered to load the trucks before the day of the injury, and that Cathay and Martin were authorized to rig a wire cable and load with an engine; and loading by derrick was a safe way; and further, as to different methods of loading trucks than that employed at the time of the accident. The court also erred in permitting witness, Clint Jones, to testify to same effect. This testimony was clearly incompetent. The master is only bound to use ordinary care in supplying reasonably safe tools and appliances to his servants; he does not insure against the danger of using such tools; but if he fails to supply reasonably safe instrumentalities to his servants to do his work, he is guilty of negligence for that neglect of duty, but no other. He is not bound to use the best tools and newest appliances obtainable, but if he supplies his servants with instrumentalities reasonably safe to do the work the servant is required to perform, he has discharged his duty. Minner v. Railroad, 167 Mo. 119; Chrismer v. Telephone Co., 194 Mo. 208, L. R. A. (N. S.) 492; Haviland v. Railroad, 172 Mo. 112; Holmes v. Brandenbaugh, 172 Mo. 64; Blundell v. Mfg. Co., 189 Mo. 558; Purcell v. Shoe Co., 187 Mo. 285; Goransson v. Mfg. Co., 186 Mo. 306; Mathis v. Stock Yards, 185 Mo. 434; Livengood v. Lead and Zinc Co., 179 Mo. 238; Beebe v. Transit Co. (Mo.), 103 S.W. 1024; Harrington v. Railroad, 104 Mo.App. 670; Beckman v. Brewing Co., 98 Mo.App. 560; Blanton v. Dold, 109 Mo. 64; Bradley v. Railroad, 138 Mo. 302; Gratis v. Railroad, 153 Mo. 403; Kehler v. Schwenk, 13 L. R. A. 374.

Everett Reeves for respondent.

(1) The allegations of negligence of plaintiff's fellow-servants and foreman were sufficient; especially so, since no timely objection to the petition was made by demurrer or motion and the only objection ever made was a general objection to the introduction of testimony. Benham v. Taylor, 66 Mo.App. 308; Foster v. Railroad, 115 Mo. 165. Young v. Iron Co., 103 Mo. 324; Powell v. Sherwood, 162 Mo. 605; Wills v. Railroad, 44 Mo.App. 51; Shuler v. Railroad, 87 Mo.App. 618; Dakan v. Mercantile Co., 197 Mo. 238. Moreover, it is no valid objection to this part of petition because it charges both negligence of the foreman and fellow-servants. R. S. 1899, sec. 2873. Jordan v. Transit Co., 202 Mo. 418; Young v. Iron Co., 103 Mo. 324; Rigsby v. Supply Co., 115 Mo.App. 297; Fogerty v. Transfer Co., 180 Mo. 490; Ruder v. Lime Co., 107 S.W. (Mo. App.) 1016. (2) Appellant earnestly urged that the negligence charged in the petition is not sufficient to bring the case within the Fellow-Servant Law. R. S. 1899, sec. 2873, 2875. And, in this connection, it is maintained that, since the allegation of the petition was sufficient to hold defendant liable for the negligence of the foreman, plaintiff could not recover under the Fellow-Servant act. But such is not the law as we understand it. If no timely objection is made to the petition by demurrer or otherwise on account of commingling causes of action in same count, one may properly rely in the same count on common law and statutory negligence, or on two or more statutory grounds of negligence in the same count, so long as the violated duties produced the one injury, as in this case. Fadley v. Smith, 23 Mo.App. 87; White v. Railroad, 202 Mo. 539; Jordan v. Transit Co., 202 Mo. 418.

OPINION

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, Missouri. 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, Missouri, under the orders, direction and immediate supervision of defendant's foreman, or overseer, and while in the line of his duty, he, with other employees 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 end of two rails, or skids, some twenty feet in length, on the end of the flat car, which was about five 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 onto the flat car.

"While he was assisting his co-employees in loading the trucks in that way, and under the supervision of his foreman, who was the vice-principal of defendant, and his co-employees, the defendant's said foreman and vice-principal and co-employees 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 use-less.

"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 onto 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 co-laborers 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 co-employees, 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;...