Rueter v. Terminal R. Ass'n

• Decision Date: 06 May 1924
• Docket Number: No. 18477,18477
• Citation: 261 S.W. 713
• Parties: RUETER v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

261 S.W. 713

RUETER v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 18477

St. Louis Court of Appeals Missouri.

Rehearing Denied May 22, 1924.

May 6, 1924.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Edward Rueter against the Terminal Railroad Association of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Howell and R.C. Beckett, both of St. Louis, for appellant.

Igoe, Carroll, Higgs & Keefe, of St. Louis, for respondent.

SUTTON, C.

This is an action for recovery of damages for personal injuries sustained by the plaintiff in a fall from a scaffold alleged to have resulted from the negligence of the defendant. The cause was tried to a jury. There was a verdict and judgment for the plaintiff for $7,000, and the defendant appeals.

Defendant objected at the trial to the introduction of any evidence" in the case on the ground that the petition wholly fails to state facts sufficient to constitute a cause of action, and insists here that the court erred in overruling its objection and in receiving evidence in support of the petition.

The petition alleges that the defendant was at all times mentioned therein a railroad corporation organized and existing under the laws of the state of Missouri; that in the course of its business, defendant maintained a line of railroad tracks in the city of St. Louis; that at a point between Clinton and Madison streets there was a structure known as a "conveyor," connecting the building on the east of defendant's tracks with a grain elevator located west of defendant's tracks, and used for the transmission of grain, which conveyor extended over and about 40 feet above said railroad tracks and was so situated that defendant's locomotives passed directly beneath said conveyor; that on the 31st day of October, 1921, plaintiff was engaged in painting said conveyor, and for this purpose was standing on the scaffold; that said scaffold was suspended from said conveyor by means of ropes and hung just below the lower extremity of said conveyor and directly over said railroad tracks; that while plaintiff was standing on said scaffold the agents and servants of said company in control of one of its steam locomotives, then and there being operated beneath such scaffold, carelessly and negligently caused and permitted a great volume of smoke and steam to be emitted from said locomotive with great force and violence and to strike said scaffold, whereby one of the ropes attached thereto was caused to fall and was caught on said locomotive, and plaintiff was thrown to the ground and injured.

Defendant's counsel say that to constitute actionable negligence there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury, a failure to discharge that duty, and injury resulting from the failure, and that the petition must allege facts showing these three essential elements. It is true that to authorize a recovery for negligence these three essential elements must be established by the evidence, but this does not mean that the evidence must be pleaded. It is the general rule that in an action based on negligence a petition which describes the act complained of with reasonable certainty and sufficient clearness so as to advise the defendant of the charge he is to meet, and avers generally that the act was negligently done, is sufficient. The term "negligence" is not, like fraud, a mere legal conclusion, or epithet applied to the act complained of. Negligence is a fact. Bliss, in his Code Pleading, at page 331, § 211a, states the principle as follows:

"The general allegation of negligence is allowed as qualifying an act otherwise not wrongful. It is not the principal act charged as having caused the injury, but it gives color to the act, makes it a legal wrong; it is the absence of care in doing the act. The injury may be the result of accident, of intent, or of negligence. As, one's carriage strikes that of his neighbor; if the collision is unavoidable there is no liability, if intentional it is a trespass, if the result of careless driving or other neglect of duty, the liability is for the collision as caused by negligence.. Negligence is one of the facts to be pleaded, it is not a conclusion of law but a conclusion of fact, an issuable, a substantive fact, to be inferred from evidential facts."

The petition in this case fully and definitely describes the act alleged to have caused the injury for which recovery is prayed, and avers that the act was Negligently done. It is sufficient, we think, even as against a general demurrer. That it is sufficient as against a general objection to the introduction of evidence at the trial, there can be no doubt. Banks v. Morris & Co. (Mo. Sup.) 257 S. W. 482; Bliss on Code Pleading, p. 331, § 211a; Heckfuss v. American Packing Co. (Mo. App.) 224 S. W. 99; Dieter v. Zbaren, 81 Mo. App. 612; Wyler v. Ratican, 150 Mo. App. 474, 131 S. W. 155; Quinley v. Springfield Traction Co., 180 Mo. App. 287, 165 S. W. 346; Haag v. Cohen, 207 Mo. App. 36, 229 S. W. 296; Bennett v. Metropolitan St. Ry. Co. (Mo. App.) 180 S. W. 1050; Thomasson v. Mercantile Town Mutual Ins. Co., 217 Mo. 485, 116 S. W. 1992; Rawleigh v. Grigg (Mo. App.) 191 S. W. 1019; Spurlock v. Missouri Pacific Ry. Co., 93 Mo. 530, 8 S. W. 349; Hays v. Miller's Estate, 189 Mo. App. 72, 173 S. W. 1096; Kern v. United Railways Co. (Mo. App,) 250 S. W. 821.

The defendant challenges the sufficiency of the evidence to support the verdict. Plaintiff was injured on October 31, 1921. He was a painter in the employ of Beal & McNamara Painting Company, and was engaged with other persons in painting a mechanical grain conveyor over the defendant's railroad tracks in the city of St. Louis. The tracks ran north and south along the west side of the Mississippi river. There were eight of these tracks. The conveyor extended from west to east about 35 feet above the tracks, connecting two buildings, one on each side of the tracks. The conveyor belonged to the Mississippi Valley Grain Company and was used for the transmission of grain over the tracks from one building to the other, In painting the conveyor the men employed two scaffolds suspended below the conveyor by means of ropes attached to stirrups in which the scaffolds were held. The scaffolds were suspended about 5 to 6 feet below the conveyor, one on the north side and one on the south side thereof. The ropes sustaining the scaffolds were extended over the roof of the conveyor. There was a clearance of about 5 feet between the scaffolds and the smokestacks of defendant's locomotives in operation on the tracks. Plaintiff was on the east end of the north scaffold engaged in painting the bottom of the conveyor. One of defendant's locomotives in charge of defendant's engineer and fireman, drawing a train of eight freight cars, approached the conveyor from the south, and, with violent puffing, passed under the conveyor and the scaffolds, and discharged a violent blast of smoke and steam from its stack against the scaffold on which plaintiff was working, forcing it upward about 1 ½ or 2 feet, causing a violent jerk of the scaffold. This sudden movement and jerk of the scaffold caused the surplus rope which was coiled and secured in the stirrup to be loosened and to fall upon the moving locomotive. The rope became entangled with the locomotive, and the scaffold, to which the rope was attached, was violently jerked by the movement of the locomotive, and plaintiff was thrown to the ground and injured.

The workmen began painting the conveyor at 8 o'clock on the morning of the day that the plaintiff was injured. They commenced their work on the west end of the conveyor, swinging the scaffolds over the west tracks. They painted the conveyor in sections. When they finished painting the section where the scaffolds were swung, they would remove the scaffolds eastward, and this process was continued until they reached the east end of the conveyor. At the time plaintiff was injured, the scaffolds were swung over the most easterly track of the yard. They had been in that position 45 minutes to an hour at the time of the accident which resulted in plaintiff's injury. The accident occurred at 3 o'clock in the afternoon. During the day, previous to the injury, while the workmen were engaged in painting the conveyor in the manner before stated, many of the defendant's locomotives and trains operated on the tracks in defendant's yard passed under the conveyor and the scaffolds on which the men were working. The trainmen in charge of these locomotives and trains saw the workmen on the scaffolds, and in passing under the scaffolds would close the throttles of their locomotives and allow the locomotives to coast under the conveyor and scaffolds. Some of the locomotives and trains were stopped and the trainmen went forward and inquired concerning the safety of the workmen on the scaffolds, before proceeding under the scaffolds. Previous to plaintiff's injury the locomotive which caused his injury had been switching in the yard Shortly before the accident this locomotive passed under the conveyor and the scaffold on which plaintiff was working, proceeding southward. It proceeded southward for some distance and did some switching south of the conveyor. Once while thus switching it approached to within 50 feet of the conveyor, and then proceeded southward again and coupled onto a freight train consisting of about eight cars, and proceeded northward at a speed of 6 to 15 miles per hour, and passed under the conveyor and the scaffold on which platiff was working, causing plaintiff to fall from the scaffold to the ground in the meaner before stated. The conveyor was a permanent structure, made of wood and steel, about 7 feet in width, and about 9 feet in depth. The locomotives that passed under the scaffolds with their throttles closed...