Sexton v. Metropolitan St. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGraves
Citation149 S.W. 21
PartiesSEXTON v. METROPOLITAN ST. RY. CO.
Decision Date29 June 1912
149 S.W. 21
SEXTON
v.
METROPOLITAN ST. RY. CO.
Supreme Court of Missouri, Division No. 1.
June 29, 1912.
Rehearing Denied July 11, 1912.

PLEADING (§ 433) — PETITION — SUFFICIENCY AFTER VERDICT.

Under Rev. St. 1909: § 2119, prohibiting the setting aside of a judgment for imperfections in pleading, a petition in an action for injuries to an employé in an electrical power house, while in charge of rotary converters, which alleges that the employé was burned by a flashover occurring on a machine, that the flashover was occasioned by tar dropping on the machinery, that such dropping was negligently permitted by the employer, that the employer's foreman had been warned of the leaking tar and had been requested to repair the roof to prevent the leaking, and that he had been warned that failure to do so would probably cause damage to the machinery, though It defectively states a cause of action because not alleging danger to plaintiff is good after verdict.

2. APPEAL AND ERROR (§ 193) — QUESTIONS REVIEWABLE — QUESTIONS RAISED FIRST ON APPEAL — SUFFICIENCY OF PETITION.

Where the petition states no cause of action, the question of its insufficiency may be raised for the first time on appeal.

3. MASTER AND SERVANT (§ 278) — INJURY TO SERVANT — NEGLIGENCE — EVIDENCE.

An employé in an electrical power house was burned by a flashover occurring on a rotary converter. The evidence showed that tar leaked from a roof. The employé testified that he saw no tar on the machine nor flames prior to the flashover. It was shown that tar was a nonconductor, while a flame was a conductor. No flames of burning tar were noticed at the time of the accident. No leaking of tar was shown as to the machine except on the base on which the machine was erected. A physician who treated the employé testified to finding specks of tar on his burned body. Other physicians making a careful examination of the employé 12 days after the accident gave no evidence as to tar, but stated that the flesh was burned deeper in some, places than in others. Held, that the evidence, as a matter of law', did not show that the explosion was caused by tar leaking onto the machine, precluding a recovery on the theory of the employer's negligence in permitting the leaking.

4. EVIDENCE (§ 584) — WEIGHT — FALSITY.

The court is not bound by testimony demonstrated to be false by all the facts and by common knowledge of scientific facts.

5. EVIDENCE (§ 595) — WEIGHT — INFERENCES.

Inferences may be drawn from facts proved, and logical inferences thus drawn will support a verdict, but an inference on an inference does not sustain a verdict.

6. WORDS AND PHRASES — "SPARKING."

"Sparking" is but the short jump of electricity from one object to another, or a slight break in a simple current.

7. WORDS AND PHRASES — "FLASHOVER."

A "flashover" is the passage of a positive current of electricity over to the negative.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by William E. Sexton against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas and Warner, Dean, McLeod & Timmonds, for appellant. Botsford, Deatherage & Creason, for respondent.

GRAVES, P. J.


Action for personal injuries. Verdict and judgment for plaintiff in the sum of $10,635, from which said judgment the defendant has appealed. Matters of pleading and proof to a limited extent can be well stated together. By his petition and his proof, it is shown that plaintiff was an experienced electrician working for the defendant at its power house at Fifteenth and Walnut streets in Kansas City, Mo. In this power house were four electric machines called rotary converters, belonging to defendant, and some others that did not belong to defendant. Plaintiff worked at nights, and had charge of the four machines which belonged to defendant. On the night of July 7, 1907, he was severely burned and injured by what is called a "flashover" occurring on machine No. 2, one of the four machines above mentioned. The petition of plaintiff is drawn upon the theory that the disturbance occurring in machine No. 2 on that night was produced by tar which had leaked through the roof of the building. The negligence is thus charged in the petition: "That said flashover, blaze, explosion, and arcking were caused by tar negligently permitted by defendant to leak through the roof of said building and drop upon said electric machinery. That said tar had been leaking through said roof on different parts of machinery in said power house and on the frame work of said machinery and on the floor of said power house for six or eight weeks, and that defendant knew of said tar leaking through on said machinery and in said power house, or by the exercise of ordinary care could have known the same, and that it was the duty of defendant to have prevented the leaking of said tar on said roof through the same and upon said machinery and in said power house; the attention of defendant's foreman, vice principal, and manager, whose duty it was to keep said roof in repair and order, had been called to said leaking of said tar five or six weeks prior to the injuries complained of herein; that said foreman, vice principal, and manager had been requested to repair the same to prevent said leaking of said tar, and had been warned that failure to do so would probably cause damage to said machinery; that said defendant's said foreman, vice principal, or manager, whose duty it was to keep said roof in repair, promised to

149 S.W. 22

repair the same, but notwithstanding said promise, and notwithstanding the fact that his attention had been specially called to said leaking of said tar from said roof on said machinery and in said power house, said foreman, vice principal, and manager negligently failed to repair the same, and negligently permitted it to remain in that leaky condition, and permitted said tar to continue to leak and drop upon said electric machinery, and that said tar did continue to leak and drop upon said electric machinery and upon said rotary converter and appliances thereto and therewith connected; that said accident was caused by the carelessness and negligence of the defendant's foreman, vice principal, and manager in permitting said tar to continue to leak through said roof, to continue to drop upon said rotary converters and the appliances thereto and therewith connected and upon said machinery, and in not repairing said roof and preventing such tar falling on said rotary converters and said appliances thereto and therewith connected and causing said flashover, blaze, explosion, and arcking."

The answer is: (1) A general denial; (2) an affirmative plea of contributory negligence; and (3) assumption of risk. Reply was a general denial. Such is the general outline of the case. Questions raised will require some elaboration of the facts, but this will be done in connection with the points made.

1. Defendant challenges the sufficiency of plaintiff's petition in this: That it is urged that the petition fails to aver that the leaking upon the machinery rendered such machinery dangerous to those operating it. The petition avers that defendant's foreman had been warned of the leaking tar and had been requested to repair the roof so as to prevent such leaking. The petition also avers that said foreman "had been warned that failure to do so would probably cause damage to said machinery." There is no express averment in the petition to the effect that dropping tar would render such machinery dangerous to those using it, or would probably make it dangerous to use in the usual and ordinary methods. Nor is there any allegation that defendant knew or might have known that tar falling upon the machinery would render it dangerous to operators.

If the petition states no cause of action at all, then the question can be raised here for the first time. In this court such is hornbook law. On the other hand, if the petition defectively states a cause of action, and such petition is not attacked by motion or demurrer below, as is true in this case, then such petition will be held good after verdict. R. S. 1909, § 2119.

There is some unfortunate language used in the petition as above indicated. Not only so, but there is absence of some material allegations, but we are further impressed with the view that the petition defectively states a cause of action rather than with the view that it states no cause of action. The line between the two classes of petitions is at times hard to draw, and this petition presents one of the hard cases, but, as above stated, we think it is a petition which falls under the broad protecting wing of the statute cited. The petition does allege that plaintiff was injured by reason of a "flashover." It does allege that the "flashover" was occasioned by tar dropping on the machinery, and that such dropping of tar was negligently permitted by the defendant. Under our very broad saving statute, we feel constrained to hold the petition good after verdict. In this contention, the defendant is therefore overruled.

2. The crucial point in this case is the sufficiency of the proof. It is clear that, before plaintiff should be permitted to recover, his proof must show (1) that his injuries resulted from a "flashover"; (2) that such "flashover" was occasioned by tar falling upon machine No. 2; (3) that tar was negligently permitted so to fall by the defendant; and (4) that defendant should reasonably have anticipated that its negligent act would occasion injury to its operators. The proof does show that plaintiff's injuries were the result of a "flashover," and it further tends to show that tar had been leaking through the roof in places. This is as far as the proof in direct terms goes.

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40 practice notes
  • Bloecher v. Duerbeck, No. 30723.
    • United States
    • United States State Supreme Court of Missouri
    • August 3, 1933
    ...cannot stand. Daniels v. K.C. Elevated Ry., 164 S.W. 154; Scroggins v. Met. St. Ry. Co., 120 S.W. 731; 10 R.C.L. 1009; Sexton v. Railway, 149 S.W. 21, 245 Mo. 254; Weltmer v. Bishop, 71 S.W. 169, 65 L.R.A. 584. (c) The facts necessary for defense, justifying the appellate court to convict t......
  • Hardin v. Ill. Central Railroad Co., No. 32084.
    • United States
    • United States State Supreme Court of Missouri
    • April 19, 1934
    ...Mo. 633, 249 S.W. 644, 257 S.W. 469; Kibble v. Q., O. & K.C. Ry. Co., 285 Mo. 603, 227 S.W. 42; Sexton v. Met. St. Ry. Co., 245 Mo. 254, 149 S.W. 21; Hickey v. Mo. Pac. Ry. Co., 8 Fed. (2d) 128; A., T. & S.F. Ry. Co. v. McNulty, 285 Fed. 97 (citing other Federal cases), M., K., T. Ry. Co. v......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...Wabash R.R. Co., 175 Mo. 650, l.c. 667, 75 S.W. 106, l.c. 110 (Instruction No. 16); Sexton v. Met. St. Ry. Co., 245 Mo. 254, l.c. 272-274, 149 S.W. 21, l.c. 25; Huss v. Heydt Bakery Co., 210 Mo. 44, l.c. 69, 108 S.W. 63, l.c. 71; Gray v. Levy, 48 S.W. (2d) 20, l.c. 23; Maxwell v. Kansas Cit......
  • Barr v. Nafziger Baking Co., No. 29575.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1931
    ...witness, his testimony does not amount to substantial evidence of the fact testified to. [Sexton v. Metropolitan St. Ry. Co., 245 Mo. 254, 149 S.W. 21; Kibble v. Q.O. & K.C. Ry. Co., 185 Mo. 603, 227 S.W. 42; Monroe v. Chicago & Alton Railroad Co., 297 Mo. 933, 249 S.W. 644, 257 S.W. It wil......
  • Request a trial to view additional results
40 cases
  • Bloecher v. Duerbeck, No. 30723.
    • United States
    • United States State Supreme Court of Missouri
    • August 3, 1933
    ...cannot stand. Daniels v. K.C. Elevated Ry., 164 S.W. 154; Scroggins v. Met. St. Ry. Co., 120 S.W. 731; 10 R.C.L. 1009; Sexton v. Railway, 149 S.W. 21, 245 Mo. 254; Weltmer v. Bishop, 71 S.W. 169, 65 L.R.A. 584. (c) The facts necessary for defense, justifying the appellate court to convict t......
  • Hardin v. Ill. Central Railroad Co., No. 32084.
    • United States
    • United States State Supreme Court of Missouri
    • April 19, 1934
    ...Mo. 633, 249 S.W. 644, 257 S.W. 469; Kibble v. Q., O. & K.C. Ry. Co., 285 Mo. 603, 227 S.W. 42; Sexton v. Met. St. Ry. Co., 245 Mo. 254, 149 S.W. 21; Hickey v. Mo. Pac. Ry. Co., 8 Fed. (2d) 128; A., T. & S.F. Ry. Co. v. McNulty, 285 Fed. 97 (citing other Federal cases), M., K., T. Ry. Co. v......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...Wabash R.R. Co., 175 Mo. 650, l.c. 667, 75 S.W. 106, l.c. 110 (Instruction No. 16); Sexton v. Met. St. Ry. Co., 245 Mo. 254, l.c. 272-274, 149 S.W. 21, l.c. 25; Huss v. Heydt Bakery Co., 210 Mo. 44, l.c. 69, 108 S.W. 63, l.c. 71; Gray v. Levy, 48 S.W. (2d) 20, l.c. 23; Maxwell v. Kansas Cit......
  • Barr v. Nafziger Baking Co., No. 29575.
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1931
    ...witness, his testimony does not amount to substantial evidence of the fact testified to. [Sexton v. Metropolitan St. Ry. Co., 245 Mo. 254, 149 S.W. 21; Kibble v. Q.O. & K.C. Ry. Co., 185 Mo. 603, 227 S.W. 42; Monroe v. Chicago & Alton Railroad Co., 297 Mo. 933, 249 S.W. 644, 257 S.W. It wil......
  • Request a trial to view additional results

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