Russell v. St. Louis & S. F. Ry. Co.

• Citation: 245 S.W. 590
• Decision Date: 06 December 1922
• Docket Number: No. 3154.,3154.
• Parties: RUSSELL v. ST. LOUIS & S. F. RY. CO.
• Court: Court of Appeal of Missouri (US)

245 S.W. 590

RUSSELL v. ST. LOUIS & S. F. RY. CO.

No. 3154.

Springfield Court of Appeals. Missouri.

December 6, 1922.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by A. B. Russell against the St. Louis & San Francisco Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Wright & Ruffin, of Springfield, for appellant.

W. F. Evans, of St. Louis, and Mann & Mann, of Springfield, for respondent.

COX, P. J.

Action for damages for personal injuries. At the trial the defendant objected to the introduction of any testimony on the ground that the petition did not state a cause of action. This objection was sustained, which resulted in an involuntary nonsuit being taken, and on the refusal of the court to set the same aside the plaintiff appealed.

The petition alleges that plaintiff was in the employ of defendant as a boilermaker helper and engaged in the repair of an engine; that his duties required him to go inside of the fire box of the engine to assist in its repair; that defendant had installed an electric light in said fee box to enable Plaintiff and others to see; that at 2 o'clock a. m. of October 23, 1020, while engaged in his work, said electric light bulb exploded and burst into fragments, and some parts of it were driven into plaintiff's eye and greatly injured it. These allegations of the petition were followed by a paragraph describing plaintiff's suffering and expenses. After that the following appears:

"Plaintiff further states that defendant, its agents, servants, and employees were negligent in that they failed to furnish to the plaintiff a reasonable safe place within which to work. Plaintiff further states that by reason of the premises and of the negligence aforesaid he is damaged in the sum of $5,000."

This petition is objected to on the ground that it does not charge any negligence, either specific or general, against defendant. Further, that if it can be said that the petition does charge negligence, generally, it is still insufficient to state a cause of action because all it alleged is that the electric light bulb exploded and proof of that fact would not make a prima facie case against defendant; that the doctrine of res ipsa loquitur does not apply to the fret that an electric bulb exploded under the circumstances as alleged in this petition.

The appellant contends that the doctrine of res ipsa loquitur does apply in this case, and that all it was necessary for plaintiff to allege and prove to put the defendant on its defense was that the defendant furnished the light bulb and that it exploded.

It will be observed that the petition does not, in direct terms, charge that the explosion of the electric light bulb was caused by the negligence of defendant. It alleges that the light bulb excluded and injured plaintiff, but makes no allegation as to how that was brought about, and then in another paragraph alleges that defendant failed to furnish the plaintiff a reasonably safe place in which to work. It was probably the intention of the pleader to charge that the explosion of the electric light bulb was the result of the negligence of the defendant, but it may well be doubted whether he has done so. Waiving that question, however, and proceeding to the merits of the controversy, we do not think the petition states a cause of action. It is clear that it does not, unless the doctrine of res ipsa loquitur applies so that all plaintiff would have to allege and prove to make a prima facie case are the facts that the light bulb was furnished by defendant, and that it exploded and...