Schneider v. The Missouri Pacific Railway Co.

• Decision Date: 13 March 1906
• Citation: 94 S.W. 730,117 Mo.App. 129
• Parties: SCHNEIDER, Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY et al., Respondents
• Court: Missouri Court of Appeals

94 S.W. 730

117 Mo.App. 129

SCHNEIDER, Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY et al., Respondents

Court of Appeals of Missouri, St. Louis

March 13, 1906

Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.

AFFIRMED.

STATEMENT.--The petition in this case is as follows:

"1. Plaintiff for his amended petition herein, leave to file same having been first had and obtained, and for his cause of action against defendant, states that the defendants are now and were at the times hereinafter mentioned and referred to corporations organized and existing under the laws of the State of Missouri, and engaged in the business of conducting a steam railway business and as a common carrier in the city of St. Louis and State of Missouri, and elsewhere.

"2. Plaintiff further states that the defendants in carrying on their said business used a certain roundhouse and repair shops located in the southern part of the city of St. Louis known as Carondelet; that on the 16th day of September, 1903 the plaintiff herein was employed in the said roundhouse of the defendants as an engine wiper; that as such his duties consisted of cleaning up and wiping off engines, brought here for that purpose, and starting the fire and getting engines ready to start to work.

"3. And for an assignment of negligence against the defendants plaintiff states that on said day, the agent and foreman of said roundhouse, being the agent of said defendants, having charge and control of plaintiff at said time, carelessly and negligently ordered and directed the plaintiff to assist a certain mechanic then and there being in the employ of defendants for the purpose of constructing and repairing engines broken down or out of repair; that said work was new and unknown to plaintiff; that said work requires a trained and skilled mechanic; that said foreman knew and by the exercise of ordinary care would have known that the plaintiff did not understand said work and that it was new to him; that said foreman knew and by the exercise of ordinary care would have known it was dangerous to order plaintiff to assist said mechanic in doing said work, and that plaintiff was apt to get hurt or injured thereby; that said foreman was careless and negligent in ordering and directing plaintiff to assist said mechanic in doing said work, which carelessness and negligence directly contributed to and caused the injuries received and suffered by the plaintiff as hereinafter more fully set forth.

"4. Plaintiff further states that in assisting the said mechanic as aforesaid, the said mechanic directed this plaintiff to fetch a certain part or piece of a locomotive or engine called a 'strap' and being a heavy piece of machinery consisting in part of certain bars of steel, iron and brass with certain pins and keys running through them and used for the purpose of connecting the parts called the driving rods of such engine or locomotive; that in pursuance of said order and direction, this plaintiff brought said strap to said mechanic; that thereupon said mechanic directed and ordered this plaintiff to hold said strap with his hands in an upright position so he, the said mechanic, could knock out the pins, being the bolts running through the said strap; that in pursuance of said order this plaintiff held said strap as directed by placing his hand at the top of the same; that in doing so his two fingers, being the second and third fingers of plaintiff's left hand, were placed in a hole in the upper part of said strap where one of said bolts or pins had been taken out; that said mechanic was engaged in knocking or taking out the other bolts or pins, and then suddenly and without warning to plaintiff, carelessly and negligently jerked up a certain crosspiece in the lower part of the inside of said strap and closely fitting the same and thereby caught plaintiff's said fingers, badly crushing, mashing, lacerating, bruising and cutting the same; that this plaintiff had no knowledge of the mechanism of said strap or its various parts and did not know that said mechanic would jerk up the said part; and did not know that said part so jerked up was movable; that neither the said foreman nor the said mechanic told or instructed the plaintiff how to handle the same that the plaintiff did not know of the dangers of handling the said strap or piece of machinery and had no warning, knowledge or notice of same; that said mechanic knew, or by the exercise of ordinary care would have known that plaintiff's hand and fingers were in said place; and knew, or by the exercise of ordinary care would have known to jerk up said crosspiece of metal without notice or warning to plaintiff while his hand was in said position, would cause injury to plaintiff; that the injuries aforesaid were caused by the carelessness and negligence of the said mechanic and foreman as aforesaid; that by reason of said injuries as aforesaid plaintiff suffered great pain of mind and body and will continue to suffer great pain of mind and body; that by reason thereof he has suffered great loss of earnings and will continue to suffer great loss of earnings; that said injuries will cause said fingers to be and remain permanently stiff and disabled; that he has incurred expense for medicines and medical attendance in trying to cure said injuries; all to his damage in the sum of four thousand five hundred dollars, for which sum, together with his costs herein expended he prays judgment."

The third paragraph was stricken out on defendants' motion. Then a demurrer to the petition was sustained and, plaintiff having declined to amend, final judgment was entered and he appealed.

Judgment affirmed.

Christian F. Schneider and Chas. B. Stark for appellant.

(1) The charge of negligence contained in the part the respondent asked the court to strike out stated actionable negligence against the respondents and said motion should have been overruled. Plaintiff (appellant) having been placed by defendant (respondents) in a dangerous place, he was entitled to recover if injured while there without contributory negligence on his part. Devore v. Railroad, 86 Mo.App. 429; Doyle v. Railroad, 140 Mo. 16, 41 S.W. 255; Connolly v. St. Joseph Prtg. Co., 166 Mo. 464, 66 S.W. 268; Hamman v. Cent. Coal & Coke Co., 156 Mo. 244, 56 S.W. 1901; Murray v. Railroad, 98 Mo. 578, 12 S.W. 252; Musick v. Dold Packing Co., 58 Mo.App. 329, 333; Soelswitz v. Am. Biscuit Mnfg. Co., 78 Mo.App. 144. (2) The petition charged that the defendant (respondents) knew or by the exercise of ordinary care would have known that it was dangerous to direct plaintiff to assist said mechanic and that he (plaintiff) was apt to be injured thereby. For the purpose of this proceeding, the motions to strike out said allegations are admitted to be true. If true they constituted a direct, continuing and contributing cause of the injury, and respondents are liable therefor. 2 Redfield on Negligence (5 Ed.), sec. 39; Wharton on Negligence (2 Ed.), par. 125, 126; Brash v. City of St. Louis, 161 Mo. 438, 61 S.W. 808; Thompson on Negligence (2 Ed.), par. 2, 1085; 16 Am. and Eng. Encyl. of Law, "Negligence, Concurrent Causes," p. 404; Parsons v. Railroad, 94 Mo. 286, 6 S.W. 464; Pruitt v. Railroad, 62 Mo. 527.

Martin L. Clardy and Henry G. Herbel for respondents.

(1) It will be perceived, on a reading of the petition, that the plaintiff attempted to fasten liability on these defendants by alleging that they had set him to work assisting a mechanic, for which work he had not been originally employed and that defendants failed to notify him of the danger of being injured in the manner he was. The purpose of our motion to strike out that part of the petition which was stricken out, was to eliminate therefrom allegations of negligence which could not possibly have been the proximate cause of plaintiff's injury, and did not state, or tend to state, any cause of action against these defendants. Haley v. Transit Co., 179 Mo. 30, 77 S.W. 731; Fore v. Railroad, 89 S.W. 1035; Grier v. Railroad, 108 Mo.App. 565, 84 S.W. 158; Moffat v. Railroad, 88 S.W. 117; Woolsey v. Railroad, 88 S.W. 1134; Henry v. Railroad, 76 Mo. 294; Gordon v. Railroad, 44 Mo.App. 208; Logan v. Railroad, 96 Mo.App. 465, 70 S.W. 734; Railroad v. Hathaway's Ex'x, 89 S.W. 724; McAlister v. Railroad, 74 Mo. 363; Leduke v. Railroad, 4 Mo.App. 490; Francis v. Transfer Co., 5 Mo.App. 12; Powell v. Railroad, 76 Mo. 82; Mathiason v. Mayer, 90 Mo. 586, 2 S.W. 834; Werbowlsky v. Railroad, 48 N.W. 1097. (2) The action of the trial court, in sustaining our motion to strike out this part of plaintiff's petition, was also justifiable on...