Schultheis v. United Rys. Co.

• Decision Date: 30 November 1921
• Docket Number: No. 220063.,220063.
• Citation: 236 S.W. 54
• Parties: SCHULTHEIS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

236 S.W. 54

SCHULTHEIS v. UNITED RYS. CO. OF ST. LOUIS.

No. 220063.

Supreme Court of Missouri, in Banc.

November 30, 1921.

Motion for Rehearing Denied December 30, 1921.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by John G. Schultheis against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles W. Bates, T. E. Francis, and Vance J. Higgs, all of St. Louis, for appellant.

Robert H. Merryman, of St. Louis, for respondent.

RAGLAND, C.

This is an action by an employé for personal injuries. On May 24, 1918, and prior thereto, the defendant owned and operated a system of street railways in the city of St. Louis. All of its ears were electrically propelled. It had a terminal yard on Wash street, near Virginia avenue, where it stored and washed its cars. In this yard there were 12 parallel tracks, each about 400 feet in length, running north and south. At the north end of the yard the tracks converged, and were there connected by switches with one or more other tracks leading into a shed where defendant repaired its cars. The parallel tracks were numbered from west to east. On the east side of them there was a row of two or more iron posts, a corresponding row was set on the west side, and still another in the center between tracks 3 and 7. Apparently cross wires were strung along the tops of the post east and west, and they in turn supported the trolley wires for the twelve tracks. The center row of posts was set equally distant from tracks 6 and 7, and when cars passed over these tracks the sides of the cars" cleared the posts by six inches, while the steps of the cars cleared them by only about two inches. Cars were constantly being moved from other tracks to track 3 where they were washed, and then moved back to the storage tracks. Other cars were from time to time, as occasion required, moved from the storage tracks to the shed for repairs, and then returned.

Plaintiff was employed by defendant as helper to its brake repair man, one Bentz. Usually when the brakes on a car needed repair the conductor and the motorman brought it to the repair shed. Occasionally, however, it was necessary for the repairman and his helper to go out into the yard and bring a car in themselves. In the afternoon of May 28, 1918, they went out to get a car on track 6. The car was a short distance south of one of the iron posts heretofore described; it had a trailer attached, and the trolley was off. Under such circumstances it was the custom to put the trolley on at the front end of the car, because there was not space enough between the two cars to enable the operator to put it on in the rear. The manner in which plaintiff received injury was laconically described by himself on the witness stand. On direct examination he said:

"He (Bentz) came and says to me, `Come on,' and I said, `Where are we going?' and he said, `We will go out in the lot and get a particular car. 2 started out with him, and went out through the shed, and up Wash street, and out through the lot, and he walked up to the car and said, `Put the trolley on,' and I put the trolley on and got on the step, and just as 2 was ready to go inside the car he said, `Grab the rope,' and I turned around and grabbed the rope and got hit by the pole."

On cross-examination gave the same version in slightly different phraseology as follows:

"Me and him were working there together, and he got up out of the pit and said, `Come on, we will get a car,' and I said, `What car?' and he said, `Come on, and I will show you.' He took me out through the sheds and out across the yards, and he said, `Put the trolley on,' and I put the trolley on and he started up the car as I stepped out of the rail, and he said, `Hop on,' and no more than I stepped on he said, `Grab the rope.' What for I don't know."

It seems that the trolley rope was left suspended from the pole, and that it was of sufficient length for four or five feet of it to drag along the surface of the track in front of the car. When Bentz started the car, however, the wind blew the rope backward along the side of the car. Bentz denied that he told plaintiff to reach for the rope; he said there was no occasion for getting hold of it, and that it was of no consequence that the rope dragged on the ground or blew along the side of the car. His testimony in the latter respect was uncontradicted. The injury that plaintiff received from striking the post was a severe one.

Plaintiff was inexperienced in moving cars. He had previously been employed by defendant as an oiler at another yard, but had been working as Bentz's helper but a week or so before he was hurt. He testified that he had never been out in the yards where he received the injury prior to that time; that as he came up behind Bentz he saw the iron post a few feet ahead of the car they were going to move, but gave it and his surroundings generally no particular attention. He stated further that he had frequently seen operators moving cars in the yards and riding on the steps while doing it, and that when they brought cars to the shed where he worked the conductor and the motorman always rode on the steps.

The petition alleged:

"That said pole (the iron post near track 6) was so close to said track that it was unsafe and dangerous for those working around and about said cars in switching same, and when moving said cars, as the side of said car and the steps on said car projected out so as to only leave a few inches of clearance between the step and said pole; that on the aforesaid day defendant ordered plaintiff to go into said yard and to assist in moving a certain car therein, and that, while the plaintiff was assisting in moving said car, and while upon the front step of said car, his head came in contact with said pole, at which time he was obeying an order of the defendant, thereby inflicting the injuries hereinafter mentioned.

"That plaintiff's said injuries were directly due to the negligence of the defendant in failing to furnish him with a reasonably safe place in which to work by maintaining said iron pole so near to said track, and defendant negligently ordered the plaintiff to grab the trolley rope while plaintiff was on the step of said car while it was in motion and nearing said pole. * * *"

The answer was a general denial and a plea of contributory negligence.

The defendant, at the close of plaintiff's case in " chief, and against the close of all the evidence, requested the court to direct a verdict in its favor. Both requests were refused.

For the plaintiff the court instructed the jury:

"That if you find that the sides of said cars and the steps on said cars projected so as to only leave a few inches of clearance between the step and said poles, and that said poles were so close to said track that it was unsafe and dangerous for those working around and about said cars, and in switching same and when moving said cars; and if the jury further find and believe from the evidence that on said day defendant ordered the plaintiff to go into said yard and to assist in moving a certain car therein, and that, while plaintiff was assisting in moving said car, and while upon the front step of said car, and while obeying an order of defendant, his head came into contact with said pole, inflicting the injuries mentioned in the evidence; and if the jury further find that defendant thereby failed to use ordinary care to furnish the plaintiff a reasonably safe place in which to work by maintaining said iron pole so near said track, if you find that they did so maintain said pole, or if you find that the defendant ordered the plaintiff to grab the trolley rope while plaintiff was on the step of said car, and while it was in motion, and nearing said pole, and that defendant thereby failed to use ordinary care in giving said order, if any, * * * then the plaintiff is entitled to recover," etc.

The verdict and judgment were for plaintiff. Defendant appeals.

The petition charged defendant with two distinct acts of negligence: First, in maintaining the iron post so close to the track as to be dangerous to those working around and about its cars in moving and switching them; and, second, in ordering plaintiff to grab the trolley rope while he was on the step of a car that was in motion and approaching the post. And the instruction given by the court at plaintiff's instance directed a verdict for him if the jury found defendant negligent in either respect, and such negligence proximately caused his injury. Appellant insists that the court should have directed a...