Russell v. Johnson

• Decision Date: 16 December 1941
• Docket Number: 37676
• Parties: James L. Russell v. James J. Johnson, Appellant
• Court: Missouri Supreme Court

160 S.W.2d 701

349 Mo. 267

James L. Russell v. James J. Johnson, Appellant

No. 37676

Supreme Court of Missouri

December 16, 1941

Rehearing Denied February 26, 1942. Motion to Transfer to Banc Overruled April 16, 1942.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed.

Oscar S. Hill for appellant.

(1) The court erred in not giving defendant's peremptory instruction requested at the close of the case, because under the evidence, viewed most favorably to plaintiff, no submissible issue was proven, but, on the contrary, the evidence conclusively showed plaintiff guilty of contributory negligence as a matter of law. Mathis v. Stock Yards Co., 185 Mo. 434, 84 S.W. 66; Shuck v. Security Realty Co., 201 S.W. 559; Pulley v. Standard Oil Co., 116 S.W. 430, 136 Mo.App. 172; Slagle v. Lumber Co., 138 Mo.App. 432, 122 S.W. 321; Myers v. Orear Nester Glass Co., 129 Mo.App. 556, 107 S.W. 1041; Penny v. Southwestern Express Co., 35 S.W.2d 940; Knorpp v. Wagner, 195 Mo. l. c. 66, 93 S.W. 961; Muller v. Brenner Merc. Co., 260 S.W. 982, 33 A. L R. 175; Smith v. Ozark Water Mills Co., 238 S.W. 573, 215 Mo.App. 129; Snyder v. Trimble, 262 S.W. 697; Stein v. Battenfeld Oil & Grease Co., 39 S.W.2d 345; Brady v. Railroad Co., 102 S.W.2d 903; Vogt v. Wurmb, 300 S.W. 278; Cash v. Sonken-Galamba Co., 17 S.W.2d 927; Morris v. K. C. L. & P. Co., 258 S.W. 431, 302 Mo. 475; Gunn v. Hemphill Lbr. Co., 218 S.W. 978; Linquist v. Kresge Co., 136 S.W.2d 303; Blundell v. Miller Elevator Co., 88 S.W. 103, cited with approval in Mosely v. Sum, 130 S.W.2d 465; Watson v. Carthage Marble & White Lime Co., 290 S.W. 649; Watkins v. Bird-Sykes-Bunker Co., 16 S.W.2d 38; Forbes v. Dunnavant, 198 Mo. 193, 95 S.W. 934. (2) Plaintiff had three perfectly safe ways to get the coal, mentioned in the evidence. Notwithstanding this, plaintiff chose the glaringly dangerous and foolhardy way of attempting to carry the sacks of coal mentioned in evidence by walking the wall. The choosing of a dangerous way instead of a safe way precludes recovery by plaintiff. Smith v. Ozark Water Mills Co., 238 S.W. 573, 215 Mo.App. 129; Snyder v. Trimble, 262 S.W. 697. (3) The court erred in giving plaintiff's instruction 1 because it in effect told the jury that if this wall was dangerously high and dangerously narrow plaintiff could recover. The height of the wall, its narrowness at the top, and the condition of the surface of the wall on the top, according to plaintiff's own evidence, was known and appreciated by him, and in attempting to walk the wall under the circumstances mentioned in evidence plaintiff was guilty of contributory negligence in encountering a known and obvious danger. See cases, Point (1). (4) Even if the foreman did express a belief that plaintiff could walk the wall if he would be careful, it did not excuse plaintiff for attempting to walk the wall when his knowledge was as great or greater than that of the foreman of the danger of so doing. See cases, Point (1).

Harold E. Neibling, Lon J. Levvis, Cowgill & Popham and Sam Mandell for respondent.

Appellant's demurrer to the evidence was properly overruled. Bell v. Terminal Railroad Assn., 322 Mo. 886, 18 S.W.2d 40; Edmondson v. Hotel Statler Co., 306 Mo. 216, 267 S.W. 612; Erwin v. Telephone Co., 173 Mo.App. 508, 158 S.W. 913; Haggard v. Iron Co., 249 S.W. 712; Kuhn v. Railway, 92 Mo. 440, 4 S.W. 937; Jewell v. K. C. Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Jones v. Queen City Lumber Co., 215 Mo.App. 142, 239 S.W. 532; Messing v. Judge & Dolph Drug Co., 322 Mo. 901, 18 S.W.2d 408; Steger v. Meehan, 63 S.W.2d 109; Tull v. Ry. Co., 216 S.W. 572; Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S.W.2d 963; Wilborn v. Lead Co., 268 S.W. 655; Williamson v. Power Co., 281 Mo. 544, 219 S.W. 902; Wilson v. B. Johnson & Son, 242 S.W. 150.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action for personal injury. Plaintiff obtained a judgment for $ 18,000. Motion for new trial was overruled and defendant appealed.

Defendant had leased from the Kansas City Southern Railway Company about 200 acres of farm land in what is called the East Bottoms of Kansas City. Plaintiff was employed on the farm by defendant, and alleged that his "work and duties consisted of cooking for defendant's employees on said place, of working in the fields and doing chores as his cooking duties permitted," and such other work as defendant, or his foreman, directed. The Kansas City Southern tracks run east and west on the south side of the leased land. About a quarter of mile west of the house on the place, the railroad tracks pass over an underpass through which a public road extends north and south. The underpass walls are of concrete and extend some distance north from the underpass.

Plaintiff alleged that the tops of the north side underpass walls near the railroad track were "many feet above the surface" of the public road, "but at the extreme north ends of said walls their tops were only a little above the surface of the adjoining ground, so that at the north end of the east one of said walls a person easily could step up onto said wall; that then by walking southwardly along the top of said wall one could reach and go upon or across said railroad right of way; and that said east wall was used much for such purpose; . . . that the tops of said walls had been made about one foot thick and then had been finished with cement caps which tapered in or were bevelled off on the edges so that the top surfaces of said walls were only a few inches wide; that at and for some time prior to the time of plaintiff's said injury said top caps had become cracked and broken in places so that the top surfaces of said walls were uneven and rough; that by reason of said height, narrowness, and rough and uneven condition of the tops of said walls, or either of said conditions, it was not reasonably safe, but was unsafe and dangerous for plaintiff to be required to carry any heavy object or load along the top of either of said walls, for in so doing he was likely to become overbalanced or to slip or trip and lose his footing and thereby be caused to fall and be injured, all of which facts defendant and his superior over plaintiff knew, or by the exercise of ordinary care, could and should have known at and before the time of plaintiff's said fall; that notwithstanding said facts defendant, through his foreman and superior over plaintiff, carelessly and negligently required plaintiff to get some coal that defendant's foreman had seen lying on said right of way near said underpass, and carelessly and negligently ordered and directed plaintiff to put the same in sacks and to bring said sacks of coal down by way of the top of one of said underpass walls, and carelessly and negligently assured plaintiff that he could safely do so; that plaintiff, not knowing or appreciating said danger or the imminence and certainty thereof, but relying upon said directions and assurance and upon the judgment of his said superior proceeded to get and bring said coal in said manner in obedience to said orders and directions; and that while plaintiff was carrying a sack of said coal along said east wall he fell therefrom and was injured."

The answer was a general denial, coupled with pleas of contributory negligence and assumption of risk. The reply was a general denial.

Error is assigned on the refusal, at the close of the case, of defendant's request for a directed verdict; on instructions, given and refused; and on an alleged excessive verdict.

The evidence is not set out in the record in narrative form. In the briefs, both sides, in dealing with the facts, quote from the evidence as it appears in the record in questions and answers. Plaintiff's own evidence, rearranged and in the narrative for the most part, may be stated as follows:

"At the time of injury I was 53 years old; had worked for defendant 7 or 8 years in the store, on the farm, etc. I got $ 5.00 per week and my keep. Sometimes, 6 or 8 men were employed on the farm. I stayed at the house on the farm about a quarter of a mile east of the underpass and about 100 yards north of the railroad, and did the cooking. Defendant did not furnish the necessary fuel; I had to pick up fuel along the railroad track. He said I could pick up old boards and broken ties along the railroad track; that he couldn't afford to buy coal. On the afternoon that I was injured, I was repairing a corn crib and Mr. Garrison, my foreman, told me to get some sacks and go up along the railroad track and pick up some coal he had seen knocked off the cars. I said to him, 'How do you expect me to get it; I don't have any boots and I will get my feet wet.' It was a cold, disagreeable, drizzly day, muddy and slushy. You would go into it over your ankles plumb up to your shoe tops. There was no other way to go except over the underpass wall, without going a quarter of a mile below the house, and then around up there and back under the underpass. Mr. Garrison told me to go and walk the underpass wall, and get a couple of sacks of coal. He told me where the coal was. He said that it was right up west of the underpass, lying along the track. He told me to get a couple of sacks of coal and bring it over to the north end of the underpass wall, by the road there, and he would come up with his car and get it and haul it to the house. I said I didn't know whether I could walk the wall or not, and he said that he knew damn well I could if I would be careful, so I went on and went over the underpass east wall. I walked the east underpass wall; at its north end it comes down close to the ground. It got higher up towards the railroad track. It was concrete and was flat on top and 8 or 9 inches wide, and was 8 or 9...