Salmon v. The Chicago & Alton Railroad Co.
| Decision Date | 06 July 1914 |
| Citation | 168 S.W. 829,181 Mo.App. 414 |
| Parties | EVERET SALMON, Respondent, v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Callaway Circuit Court.--Hon. D. H. Harris, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
T. A Boulware and Scarritt, Scarritt, Jones & Miller for appellant.
(1) The court erred in refusing defendant's peremptory instruction. Galm v. Railroad, 113 Mo.App. 591; Overton v. Railroad, 111 Mo.App. 613. (2) Error in plaintiff's instruction No. 1. Politowitz v Telephone Co., 115 Mo.App. 57; Logan v Railway, 183 Mo. 582; Caffery v. Coal Co., 95 Mo.App. 174. (3) Error in measure of damage instruction. Steinman v. Transit Co., 116 Mo.App. 673; Prendenville v. Transit Co., 128 Mo.App. 596; Duke v. Railroad, 99 Mo. 347; Madden v. Railroad, 50 Mo. 682.
Cave & Eversole and Chas. M. Hay for respondent.
(1) The court properly overruled defendant's peremptory instruction. Camp v. Railroad Co., 94 Mo.App. 272; Bowen v. Railway Co., 118 Mo. 541; Hance v. Railway Co., 56 Mo.App. 476; Callahan v. Railway Co., 170 Mo. 495. (2) Plaintiff's instructions Nos. 1 and 4, although not correctly phrased, afford no grounds for reversible error. Barry v. Railway Co., 98 Mo. 62; Williams v. Mitchell, 112 Mo. 300; Brown v. Railway Co., 20 Mo.App. 427; Bassett v. Glover, 31 Mo.App. 161; Walter v. Cathcart, 18 Mo. 256. (3) Plaintiff's instruction No. 2, defining the measure of damages, does not contain reversible error. Abbitt v. Transit Co., 104 Mo.App. 534; Sherwood v. Railway Co., 132 Mo. 345. (4) The judgment is not excessive. Norton v. Kramer, 180 Mo. 536; Franklin v. Fisher, 51 Mo.App. 345; Wills v. Railway Co., 44 Mo.App. 51.
Suit to recover damages for personal injuries alleged to have been sustained while plaintiff, in the employ of defendant, was engaged in loading railroad ties into a freight car.
Two boards, about three feet apart and sixteen feet in length, extended from the ground to the brace-rod underneath the car at the door thereof. This brace-rod was about two feet from the ground and two feet from the car doorsill. A tie would be taken from the pile on the ground by two men, one at each end, and with the tie on their shoulders, they would walk up the right hand plank to the car door. Men in the car would there take the tie from their shoulders and pile it back in the car, and the two men would thereupon descend to the ground on the left plank. In this way a file of men, two by two, each two carrying a tie which weighed in the neighborhood of 180 pounds, would march in a continuous circuit up the right plank, there be relieved of their burden, and march down over the left plank. There were five men in the car to take the ties from the shoulders of the men as they came up to the door. The two men carrying a tie up to the car door, immediately preceding plaintiff and his partner, laid their tie in the doorway for some reason, presumably because no one of the men in the car was there to take it from their shoulders. Some one in the car, referring to the tie laid in the doorway, said "throw it out." Thereupon one of the men in the car shoved it out and it fell upon the left hand plank and, rebounding in some way, struck and tilted the right hand plank just as plaintiff and his co-tie-carrier, Ed Bean, (the latter in front), came up the plank with a tie on their shoulders. It had been raining and the ties as well as the plank were slippery. The tilting of the plank caused the two men to fall off, Bean alighting on his feet. But plaintiff, being over balanced, fell to the ground and the tie fell on him bruising and injuring his shoulder.
The petition alleged that a particular individual, Arlie Wilkerson one of the employees in the car etc.; that "by reason of the negligence, carelessness and unskillfulness aforesaid of the said employee of defendant Arlie Wilkerson, while in the performance of his duties, the plaintiff was severely wounded," etc.
It will be noticed that the petition charges a specific individual, Arlie Wilkerson, with the negligence alleged. No other employee in the car was charged therewith. It is urged, therefore, by defendant that there was no evidence to show that Arlie Wilkerson negligently pushed the tie out, and as plaintiff has alleged the specific negligence of Wilkerson, he cannot show that someone else pushed the tie out but must prove that Wilkerson did it and did it negligently.
It is true plaintiff does not himself state facts showing the negligent pushing of the tie out. He swore that Wilkerson pushed it out, but how, why, or under what circumstances, whether by accident or otherwise, he does not say. If this were all the testimony in the case, we would perhaps say there was no showing of negligence since Wilkerson might have caused the tie to fall out and yet have been wholly without fault. But there was other testimony in the case showing, or tending to show, or reasonably carrying the inference, that Wilkerson did it carelessly. The witness Boyd testified that the tie was lying in the door and "some man in the car hollowed 'throw it out' and some one shot it out through the door" causing the injury. The plaintiff having testified that Wilkerson threw it out, and Boyd having thus testified to facts showing that it was intentionally thrown out without a due and proper regard for the safety of the men carrying ties up the plank, this was amply sufficient to justify the jury in finding that Wilkerson negligently threw it out. It cannot be successfully contended that because Boyd said "someone" in the car threw it out and did not say Wilkerson did it, there was no proof that Wilkerson did it negligently as specifically alleged in the petition. Boyd did not say someone in the car other than Wilkerson did it. He did not say who threw it out. He merely testified to facts showing that "someone" negligently threw it out and plaintiff said that that someone was Wilkerson. The two witnesses therefore furnished evidence necessary to support the allegation specifically charging Wilkerson with the negligent act. If there was evidence to show that some other man threw it out, defendant's objection might prevail, but there was no such evidence.
For this reason plaintiff's instruction No. 1 was not erroneous because it told the jury that if they found "that some other employee of defendant while acting in the scope of his employment in loading ties" pushed the tie out the door, etc., instead of requiring the jury to find that Arlie Wilkerson, the particular employee alleged in the petition, did it. The words "some other employee" were not...
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Sullivan v. St. L.-S.F. Railway Co.
...in plaintiff's injury. There was no substantial proof of any of the several acts of negligence pleaded in the petition. Salmon v. Railroad, 181 Mo. App. 417; Long v. Railway, 159 S.W. 779; Wyandotte Ry. v. Wilson, 168 S.W. 565. (2) It was error to permit plaintiff, during the progress of th......