Schuh v. American Car & Foundry Co.

Decision Date02 May 1922
Docket NumberNo. 16998.,16998.
Citation241 S.W. 641
CourtMissouri Court of Appeals
PartiesSCHUH v. AMERICAN CAR & FOUNDRY CO.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Theresa Schuh against the American Car & Foundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant.

John K. Lord, Jr., and Leigh C. Turner, both of St. Louis, for respondent.

BRUERE, C.

This is an action to recover damages for personal injuries suffered by plaintiff while in the employ of defendant as its servant. The judgment in the trial court was for plaintiff for $1,700, and defendant appeals.

The petition, in substance, avers that on the 25th day of July, 1918, plaintiff was employed by the defendant at its plant as a laborer, and, in obedience to the orders and directions of defendant, was picking up pieces of iron from a pile of iron for the purpose of carrying them to another part of the plant, and, while so doing, in the regular course of her employment, a large piece of iron was thrown from a railroad car, and struck the plaintiff on her right hip, causing a severe bruise and internal injuries to her right side and hip, etc.

The petition further avers that the injuries were directly caused by the negligence of the defendant in the following respects, to wit:

"(1) In failing to use reasonable care to furnish plaintiff with a reasonably safe place to work, in this, that the defendant knew, or by the exercise of ordinary care could have known, that the said piece of iron was likely to be thrown from the said car, and in placing employees to work in said car for the purpose of throwing out pieces of iron from the said car at the same time that the plaintiff was required to work and take pieces of iron from the said pile, which was adjoining to and next to the car.

"(2) In failing to warn the plaintiff of the danger of taking pieces of iron from the said pile when the defendant knew, or by the exercise of ordinary care could have known, that large pieces of iron were to be thrown from the said car at the same time she was taking pieces of iron from the said pile."

The defendant joined issue on the petition by filing a general denial.

The facts and circumstances attending the injury are found solely in the testimony of the plaintiff herself. Briefly stated they are as follows:

Plaintiff was employed as a common laborer in defendant's plant in the city of St. Louis, and had been so employed for about a week immediately preceding the day of her injury. On said day she was put to work, by defendant's superintendent, about a large pile of scrap iron. This pile was 10 or 12 feet high, and about 12 feet wide at its base. There was a fence against which the iron was piled, and the pile extended above the fence. Ten or 12 women, including the plaintiff, were at work at the bottom of the pile, picking up the scrap iron in buckets and carrying it to another part of defendant's plant. Plaintiff had been doing this particular work for three days before she was injured. While plaintiff was so engaged, 10 or 12 women were throwing pieces of iron upon the pile from a railroad car across the pile and just outside the fence. The pieces of iron were of varying sizes and weights, and consisted of bolts, horseshoes, nuts, and things of that kind, such as a woman could take in her hand and throw on the pile. The fence between the car and the pile of scrap iron was about 10 or 12 feet high, so that plaintiff, while engaged about the pile of iron, was unable to see the women on the car, and it follows that they could not see her. Owing to the height of the fence it was necessary to throw the scrap iron in an upward direction from the car in order to get it on the pile. While plaintiff was stooping to pick up a piece of iron from the outer edge of the pile, and about 12 feet from the fence, a piece of iron, thrown by one of the women on the car, struck her in the groin and injured her. This piece of iron was about 3 inches thick and 4 or 5 inches long.

Regarding the extent of her injuries the evidence discloses that after plaintiff was injured she was unable to do the work she was accustomed to do prior to the accident, and unable, for a period of six or seven months after she was hurt, to do her household work; that during said time she suffered intense pain, which at times confined her to bed, and that at the time of the trial, which occurred 15 months after the accident, she still suffered pain in her groin when engaged in work that required lifting or reaching over.

At the close of plaintiff's evidence defendant offered and the court refused a peremptory instruction to find for the defendant. The defendant offered no evidence, and asked no instructions aside from its demurrer to the evidence.

The cause was submitted to the jury upon the first assignment of negligence charged in the petition; the second assignment was not submitted to the jury.

There are but two questions raised by counsel for appellant in his brief, to wit: (1) Did the trial court err in overruling the demurrer to the evidence? (2) Is the verdict excessive?

In support of the contention that the demurrer to the evidence should have been :sustained, learned counsel for appellant contend that the act of negligence which was shown by the evidence to have caused plaintiff's injuries was the negligent act of a fellow servant of plaintiff, for which the defendant is not liable.

We do not think that the fellow-servant rule will defeat recovery in this case. The master is bound to exercise reasonable care to furnish his servant a reasonably safe place in which to work, and a...

To continue reading

Request your trial
11 cases
  • Tash v. St. Louis-San Francisco Ry. Co.
    • United States
    • Missouri Supreme Court
    • 16 Noviembre 1934
    ... ... Pocker, 26 F.2d 204; ... Chicago & N.W. Railroad Co. v. Payne, 8 F.2d 332; ... American Brewing Assn. v. Talbot, 141 Mo. 683; ... Fuchs v. St. Louis, 167 Mo. 645; State ex rel ... Railroad Co., 236 S.W. 677; Koerner v. St. Louis Car ... Co., 209 Mo. 141; Schuh v. American C. & F ... Co., 241 S.W. 641; Bright v. St. L. Vitrified & Fire ... Brick Co., ... ...
  • Gimmarro v. Kansas City
    • United States
    • Missouri Supreme Court
    • 3 Mayo 1938
    ...McNairy v. Pulitzer Co., 274 S.W. 852; DeBastiana v. Lesser, 297 S.W. 174; Seitz v. Pelligreen, etc., Co., 203 S.W. 505; Schuh v. Amer. Car & Fdry. Co., 241 S.W. 642; Dell v. Schaefer Const. Co., 29 S.W.2d 77; Clark v. Rock Hill Quarry, etc., Co., 7 S.W.2d 716; Markley v. Kansas City, 286 S......
  • Karr v. Chicago, R. I. & P. Ry. Co.
    • United States
    • Missouri Supreme Court
    • 30 Julio 1937
    ...etc., Ry., 37 S.W. 787; Hoffman v. Peerless, 296 S.W. 764; McNairy v. Pulitzer, 274 S.W. 849; Setz v. Pelligreen, 203 S.W. 505; Schuh v. Am. Car Co., 241 S.W. 641; Primus v. A. Coast Line Railroad Co., 171 S.E. certiorari denied, 54 S.Ct. 56; Pecos, etc., Ry. Co. v. Suitor, 219 S.W. 1034; M......
  • Karr v. Rock Island Ry. Co.
    • United States
    • Missouri Supreme Court
    • 30 Julio 1937
    ...etc., Ry., 37 S.W. 787; Hoffman v. Peerless, 296 S.W. 764; McNairy v. Pulitzer, 274 S.W. 849; Setz v. Pelligreen, 203 S.W. 505; Schuh v. Am. Car Co., 241 S.W. 641; Primus v. Atl. Coast Line Railroad Co., 171 S.E. 1, certiorari denied, 54 Sup. Ct. 56; Pecos, etc., Ry. Co. v. Suitor, 219 S.W.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT