Root v. Quincy, O. & K. C. R. Co.

• Decision Date: 29 November 1911
• Court: Missouri Supreme Court
• Parties: ROOT v. QUINCY, O. & K. C. R. CO.

141 S.W. 610

237 Mo. 640

ROOT v. QUINCY, O. & K. C. R. CO.

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

1. MASTER AND SERVANT (§ 222)—INJURY TO SERVANT—ASSUMPTION OF RISK.

A member of a pile-driving crew engaged in rebuilding a railroad bridge was injured while at work by the movement of a car containing the pile driver. He showed that the foreman ordered him to do the work at once, before the car was backed away as was customarily done, and that the foreman gave the signal for the movement of the car. The work could have been done in safety had the car not been moved. Held, that there was nothing in the situation or in the usual course of the work which made it the duty of the servant to refuse obedience of the foreman's order on the ground that the danger was so imminently threatening to life and limb that no man of ordinary prudence would assume it, so that the servant did not assume the risk.

2. TRIAL (§ 203)—INSTRUCTIONS.

A servant engaged with a pile-driving crew in rebuilding a railroad bridge was injured while at work by the movement of a flat car containing the pile driver. He showed that the foreman ordered him to do the work at once, before the car was backed away as was customarily done, and that the foreman then gave the signal for the movement of the car. The master showed by two witnesses that the foreman ordered the servant to do the work after the track was clear, and by a third witness that the foreman directed the servant to do the work, and that the foreman would procure ties for which the car was about to go back. Held, that the master was entitled to an instruction presenting the theory of the case based on the testimony of the three witnesses, and of the testimony of the two witnesses, so that, if the jury found that the order contemplated that the servant should do the work after the car had been moved away, there could be no recovery.

3. TRIAL (§ 252) — INSTRUCTIONS — ASSUMPTION OF FACT.

An instruction which contains a supposition of fact supported by congruous parts of the testimony of several witnesses is not objectionable as not justified by the evidence.

4. TRIAL (§ 252)—INSTRUCTIONS.

Where, in an action for injuries to a servant, the evidence showed that the foreman gave the servant but one order, and that the order was either in the terms shown by the testimony of the witnesses of the servant or in the terms shown by the witnesses of the master, a requested instruction presenting the theory of the case as disclosed by the master's testimony was not objectionable for failing to expressly submit whether the alternative form of the order quoted in it was the only one given, since a finding of facts as predicated in the instruction involved by necessary implication a finding against the servant's contention.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Ed. Root against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Plaintiff alleges that he was a member of a "pile driver crew," employed by defendant to rebuild a portion of its bridge over the Chariton river, which had been burned; that he was under the orders and control of the foreman of said crew, Walt Johnson, and while so engaged was directed "to tighten the nut of a cord bolt" at a point on the south rail of defendant's railroad track, about halfway between the trucks of the flat car containing the pile driver and the outward projection of the "leads" of the pile driver, which were two posts about 37 feet high and were a part of the machinery of a pile driver, and at the time projected about 14 feet in front of the truck of the car on which the pile driver was constructed. This pile driver with its block and tackle were used to bring piling, stringers, and cross-ties from the place where such material was deposited to the points where it was used in rebuilding the bridge. The bottom of these leads was about five inches above the cross-ties when laid on the track. Plaintiff states that while obeying said directions, and while engaged in tightening said bolt at a point midway between the front of the car carrying the pile driver and between the outward projection of the leads, "the defendant negligently ran said pile driver over and upon the plaintiff, and negligently dragged plaintiff on and along the railroad track," thereby inflicting great and painful injuries, and causing him to be permanently disabled. Plaintiff claimed damages for $30,000. The answer was a general denial and plea of contributory negligence. The undisputed evidence showed: That plaintiff was a member of a pile driver crew of which Walt Johnson was the foreman. That said crew and its foreman were employed by the defendant to reconstruct the main span of its bridge over the Chariton river, which had been destroyed by fire a few days before the 10th day of July, 1907. That on said day the flat car on which the pile driver was erected was operating from the west side of the river across which defendant's railroad ran in an easterly and westerly direction. That the car containing the pile driver was moved by a locomotive and was used to transport, first, piles to be sunk in the river; secondly, caps and stringers to place on them; thirdly, cross-ties to place on the stringers to serve as a support for the metals over which the trains were run. The plaintiff was injured at a time when the flat car and pile driver had brought up and laid a stringer on the north side of the track, and when it had started to back out in a westerly direction to get ties to be put across said stringer and a like stringer which had already been laid on the south side of the track.

The testimony of the plaintiff and his witnesses as to the manner in which the injury happened is to the effect: That plaintiff told the foreman, Walt Johnson, that the bolt which had been put in through a stringer on the south side of the track was too short for an O G washer, and that the foreman answered: "Go down and tighten it up; have not time to put in another bolt." That plaintiff picked up a wrench and proceeded to tighten said bolt, and had only made about two half turns on the nut when the backing out of the flat car caused the foot of the leads to run upon his thigh and inflict the injuries sued for. That the backing out of the car was in obedience to a signal given by the foreman. There is no conflict in the evidence as to the situation of the plaintiff when he was injured. He was at a point equally distant between the front of the car trucks and the lower end of the projecting leads. He was about seven feet from the leads when he sat down on the ties to do the work. Neither is there any conflict in the evidence that the injury was caused by the backward movement in a westerly direction of the car under a signal made by the foreman immediately after his conversation had with plaintiff. There is a direct conflict in the evidence as to the words and substance of the conversation between the foreman and the plaintiff which immediately preceded the injury. As to this the foreman and other witnesses for the defendant testified: That, when the car carrying the pile driver had landed the north stringer and after the crew had "snubbed" or "tied" it with a rope, then the car was ready for its next task, which was to go back and get ties to be laid across the stringer in question and the one which had been previously landed on the south side of the track. That plaintiff then asked the foreman, who was standing within 18 inches of him: "Shall I help get the ties?" That the foreman replied: "No, Ed.; you help Comer put the bolt in, and I will get the ties." The foreman testified that he told plaintiff to do this "when we get in the clear." When asked questions about this, the witness said: "Q. Well, when you told Root to help this Comer put this bolt in as soon as you got in the clear, what did you mean by getting in the clear? A. Getting the machine out of the way. Q. That is, moving the pile driver where? A. Back off of the bridge. Q. That would mean toward the west? A. Yes, sir.' And again made answer: "Q. What was it you told Root to do to the best of your recollection? A. I told him to help Comer put this bolt in there when we got in the clear. This stringer had just been landed at the time. I said I would help get the ties. Q. You didn't tell him to tighten that nut? That is not what you said? A. No, sir." And again: "Q. Root asked you if he should go out with the driver and get the ties, did he? A. Yes, sir. Q. And you answered him, saying that you would get the ties and for him to help Comer put the bolt in as soon as you got in the clear? A. Yes, sir. Q. That was your language as near as you can remember? A. Yes, sir. Q. What did you do immediately after you told him that? A. Turned out to the south, and walked back on the south side, and gave the engineer a signal to back up and walked ahead and climbed on the car. Q. How soon after you gave the signal was it until the driver started to move? A. It was just an instant." As to this conversation the witness Comer testified: "Q. How far were you from those two men? A. I don't suppose we was over 18 inches apart. We was right close together. Q. You do know that you heard those words spoken between those two men at that time? A. Yes, sir; Root asked the question, and Johnson he said: `No; I will go and get the ties, and you help Comer put the bolt in as soon as I get the train out of the road.' Q. Then immediately after that Johnson stepped to the south, and, facing the west, gave the back up signal with his left hand? A. Yes, sir." As to this conversation witness N. S. May testified that he was holding the leads and...