Rooney v. St. Louis-San Francisco Railway Company

• Decision Date: 17 July 1926
• Citation: 286 S.W. 153,220 Mo.App. 273
• Parties: PETER ROONEY, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

286 S.W. 153

220 Mo.App. 273

PETER ROONEY, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.

Court of Appeals of Missouri, Springfield

July 17, 1926

Appeal from the Circuit Court of Butler County.--Hon. Charles L Ferguson, Judge.

AFFIRMED.

Judgment affirmed.

E. T Miller and Ward & Reeves for appellant.

(1) The court erred in refusing instruction No. B in the nature of a demurrer to the evidence offered at the close of the whole case. (a) The car of melons in question was shipped under written contract between defendant and one J. W. Shelton. Shelton was described in the bill of lading as the consignor and also as the consignee. There was no contractual relation between plaintiff and defendant as to this car of melons. The plaintiff was, at most, a mere licensee, and the defendant owed him no duty except not to wantonly injure him or lay any trap for him. If plaintiff was a licensee and not an invitee he cannot maintain this action and defendant's demurrer at the close of the whole case should have been given. Wencker v. Railroad, 169 Mo. 592; Forsythe v Grocery Co., 283 Mo. 49; Lowenstein v. Railroad, 134 Mo.App. 24; Glaser v. Rothschild, 106 Mo.App. 418; Carr v. Railroad, 195 Mo. 214. (b) The proximate cause of plaintiff's injury was his negligent act in undertaking to open the car-door by pulling upon an upright slat nailed thereon and made a part of the door, and the alleged negligent failure of the defendant to provide hand-holds on the door was not the proximate cause of plaintiff's injury. Daneschocky v. Lieben, 195 Mo.App. 470; Shunk v. Harvey, 223 S.W. (Mo. Sup.) 1066; Diehl v. Fire Brick Co., 299 Mo. 641. (c) The injury was brought about by the exceptional circumstance of the plaintiff's undertaking to open the door in the particular way selected by him at the time, and this act of the plaintiff was an intervening, efficient cause which brought about his injury, and he therefore cannot recover. Riger v. Leming Lbr. Co., 210 Mo.App. 322; Lowe v. Railroad, 265 Mo. 578; Shunk v. Harvey, 223 S.W. (Mo. Sup.) 1066; Ryan v. Lea, 249 S.W. (Mo. App.) 685; Cluett v. Light & Power Co., 220 S.W. (Mo. Sup.) 865; DeMoss v. Railways Co., 296 Mo. 526; State ex rel. v. Ellison, 271 Mo. 463. (d) Under the conceded facts the plaintiff knew there were no handholds on the car door and he thereupon voluntarily undertook to open the door by pulling at a slat on the door, which the evidence does not disclose was designed for use in opening the door. The plaintiff weighed two hundred thirty-five pounds and was six feet and three inches in height, and he threw his whole weight against this slat, which broke and precipitated him to the pavement. Under these circumstances he assumed the risk incident to the means and manner adopted by him to open the door and he was thereby guilty of such contributory negligence as to preclude a recovery in this case. Haviland v. Railroad, 174 Mo. 106; Slagel v. Lbr. Co., 138 Mo.App. 432; Harbacek v. Iron Works Co., 229 S.W. (Mo. Sup.) 803; Thomas v. Cement Co., 245 S.W. (Mo. App.) 575; Emory v. Railroad, 246 S.W. (Mo. Sup.) 335. (e) Plaintiff's own evidence shows that the alleged defect in the slat or plank at which he was pulling when he fell could not be discovered until after the plank was pulled off the door and broken, and then it was discovered to be rotten. The plank was painted and looked like it had been painted for six or twelve months. There is nothing in the testimony to indicate that the alleged defect could have been discovered by a reasonable or ordinary inspection. To hold the defendant liable in this case the alleged defect must have been such that same could be discovered by reasonable inspection, and there was no evidence in the case from which it could be inferred that such discovery could have been made by the defendant by such inspection. The plaintiff therefore made no case for the jury. 29 Cyc., 430; Eisenberg v. Railroad, 33 Mo.App. 85.

Smith & Zimmerman for respondent.

(1) The court properly refused instruction No. B in the nature of a demurrer to the evidence offered at the close of the whole case. (a) The testimony was substantial that the respondent contracted with the defendant through its agent at Clarkton, Missouri, for two freight cars for the purpose of shipping two carloads of melons; that both loads of melons belonged to the respondent, and that he secured the cars for peddling purposes, and after the cars reached Tower Grove Station in St. Louis, the respondent was permitted to remain there peddling from the two cars. Since there was such uncontroverted testimony, the trial court properly refused the demurrer. The cars were furnished to respondent by appellant, for hire, and it was appellant's duty to furnish cars equipped with good and sound doors, and with proper devices for opening and closing such doors, and was a disregard of such duties to furnish a car with defective and rotten slats on its doors and doors without handholds. Roddy v. Railroad, 104 Mo. 234; Tateman v. Railroad, 96 Mo.App. 448; Sikes v. Railroad, 178 Mo. 693; Hawkins v. Railroad, 182 Mo.App. 323. If respondent was a licensee, his relationship was that of a licensee with interest, acquiesced in by appellant, which established appellant' duty towards him. Ryan v. O'Brine Boiler Works, 68 Mo.App. 148; Etchison v. Lusk et al., 195 Mo.App. 188; Tinkle v. Railroad, 212 Mo. 445. (b) The proximate cause of respondent's injury was the negligent omission of appellant to furnish respondent with a car for peddling purposes with proper devices for opening and closing the doors of said car, and its negligence in furnishing a car with a defective or rotten slat at a place where respondent had to take hold and use in opening or closing the door to said car. Daneschocky v. Seible, 195 Mo.App. 478; Dugdale v. Power Co., 189 S.W. 830; Miller v. Railway Company, 155 Mo. 528; Townsend v. Joplin, 139 Mo.App. 394; Shafer v. Sieben, 233 S.W. 423. (c) Common sense would require some handhold or device to pull or push on in opening and closing a heavy sliding door. The injury was brought about by the omission or failure of appellant to furnish a proper handhold upon the door to be used in opening and closing the same, and by the negligence of appellant in placing and having a defective or rotten slat in the door at the place where respondent had to take hold to close the door. (See authorities cited under (b) above). (d) Under the evidence in this case it was a question of fact for the jury to say whether the respondent was guilty of contributory negligence in pulling upon the slat in an effort to close the door. The door had to be closed to save his melons, and the fact that respondent was a large man is immaterial. However, the fact that it required such a weight to close the door, conclusively shows negligence in furnishing such a door without a handhold, and in furnishing a door with defective or rotten slats thereon. Henderson v. S. L. S. R. R. Co., 248 S.W. 987; Lamb v. Mo. P. R., 147 Mo. 171; McGee v. Railroad, 214 Mo. 530; State ex rel. v. Reynolds, 226 S.W. 569; Osborn v. Wells, 211 S.W. 887; Aleckson v. Frisco, 213 S.W. 894. (e) It was a question of a fact for the jury to say whether appellant, knowing that the door had no handholds, and that it would be likely that the slats would be pulled on in order to close the door, exercised ordinary care, to discover the defective condition of these slats. Tateman v. Ry. Co., 96 Mo.App. 453; Crane v. Railroad, 87 Mo. 594; Midway Bank & Trust Co. v. Davis, 288 Mo. 577; Powel v. Land Company, 221 S.W. 767; Midway National Bank v. Davis, 233 S.W. 409.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

This cause, for personal injury, was filed in Dunklin county. The venue was changed to Butler county where a trial to a jury resulted in a judgment in favor of plaintiff for $ 1500. In due time defendant filed motion for a new trial and this being overruled this appeal followed.

It is alleged that on August 29, 1923, plaintiff loaded two cars of watermelons at Clarkton, Mo., for shipment to Joplin, Mo., via St. Louis; that these care were peddling cars; that for the purpose of having a man in charge of each car for the sale of said melons plaintiff had defendant to issue a bill for lading for one of said cars to him, plaintiff, and a bill of lading for the other car to J. W. Shelton; that the car billed in the name of Shelton was Frisco car No. 47407; that plaintiff desired the services of the said Shelton in the sale of said melons; that defendant hauled said cars from Clarkton to Tower Grove station and placed them on track No. 6.

Plaintiff further alleged that he sold one car of said melons on said track and at the close of the day September 5, 1923, while assisting Shelton to close car No. 47407 and while exercising due care the perpendicular slat on which he was pulling broke and that he was violently thrown to the ground breaking his right wrist.

It is further alleged that defendant knew or should have known how said cars would be used for peddling melons and that it was the duty of defendant to furnish plaintiff cars equipped with good and sound doors provided with proper handholds for opening and closing; that defendant in violation of this duty negligently furnished plaintiff said car No. 47407 with a door in which was a rotten slat and without handholds or devices for opening and closing the same and that because of said negligence plaintiff was injured.

The answer was a general denial and pleas of assumption of risk and contributory negligence; no reply appears to have been filed, but the cause proceeded regardless of this and no point is made in the respect.

Error is assigned (1) on the refusal of defendant's...