Sexton v. Metropolitan Street Railway Co.

• Citation: 149 S.W. 21,245 Mo. 254
• Parties: WILLIAM E. SEXTON v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 11 July 1912
• Court: Missouri Supreme Court

149 S.W. 21

245 Mo. 254

WILLIAM E. SEXTON v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

July 11, 1912

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Reversed.

John H Lucas and Warner, Dean, McLeod & Timmonds for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. At the commencement of the trial the defendant objected to the introduction of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action. At the close of the case defendant demurred to the evidence; also asked a peremptory instruction for a verdict in its favor. After verdict defendant filed motion in arrest of judgment, one of the grounds therein being that the petition does not state facts sufficient to constitute a cause of action. So the sufficiency of the petition was duly challenged throughout the case. Where a petition does not state facts sufficient to constitute a cause of action its insufficiency is not waived by answering nor cured by verdict. R. S. 1909, Sec. 1804; Welch v. Bryan, 28 Mo. 30; White v Railroad, 202 Mo. 561; Hubbard v. Clavens, 218 Mo. 621. The test by which to determine the sufficiency of a petition, after verdict, is whether a general demurrer thereto would lie. If so, it must be held insufficient. Rodgers v. Ins. Co., 186 Mo. 255. Before the petition could be held good, it would be necessary for it to allege: (1) that tar made the place or the machinery abnormally unsafe; (2) that defendant knew, or by the exercise of ordinary care would have known, that tar would make the place or the machinery abnormally unsafe. Note, 41 L. R. A. 38; Mueller v. Shoe Co., 109 Mo.App. 517; Railroad v. Kellogg, 94 U.S. 469; O'Keefe v Box Co., 66 Conn. 38. Due care or negligence cannot be settled by one incident or hypothesis. Chrismer v. Tel. Co., 194 Mo. 209. Nor does mere concurrence of negligence and injury make defendant liable. Warner v. Railroad, 178 Mo. 134. (2) Tar was not shown to be the proximate cause of the accident; therefore, defendant's demurrer to the evidence should have been sustained. Plaintiff proved that tar had been dropping through the cracks of a concrete roof for some time prior to the accident, and that defendant had knowledge thereof; but the mere concurrence of negligence and injury does not make the defendant liable. Warner v. Railroad, 178 Mo. 134. He failed to prove that such tar made the place or the appliances unsafe or abnormally dangerous, or that defendant knew, or ought to have known, that such tar would make the place or appliances unsafe or abnormally dangerous. It was necessary for him to make such proof before he would be entitled to recover. Mueller v. Shoe Co., 109 Mo.App. 517; 41 L. R. A. 38; Railroad v. Kellogg, 94 U.S. 469; O'Keefe v. Box Co., 66 Conn. 38. He also failed to prove that tar was the proximate cause of his injuries. He did show that electrical sparkings and flashovers, similar to those occurring at the time of the accident in question, were produced from many known causes, also from many unknown causes. No witness saw, or undertook to say, what it was that caused the electrical sparking or flashover which burned plaintiff. Where an accident might have resulted from more than one cause, the evidence must not leave the real cause for conjecture. Goransson v. Mfg. Co., 186 Mo. 307; Purcell v. Shoe Co., 187 Mo. 288; Warner v. Railroad, 178 Mo. 134. Where any injury may have resulted from either of several proximate causes, it is for plaintiff to show "with reasonable certainty," that the cause alleged, and for which defendant would be liable, is the one which produced the result. Warner v. Railroad, 178 Mo. 134; Goransson v. Mfg. Co., 186 Mo. 300; Purcell v. Shoe Co., 187 Mo. 276; Trigg v. Land Co., 187 Mo. 227; Browning v. Railroad, 106 Mo.App. 729; Shore v. Bridge, 111 Mo.App. 278; Candle v. Kirkbride, 117 Mo.App. 278; Thornberry v. Mining Co., 126 Mo.App. 660. Plaintiff, who had charge of machine No. 2, on which this flashover occurred, was the only person in position to have known or discovered whether or not tar was the proximate cause of his injuries. He testified that he made an effort to ascertain what it was which was causing this sparking, but was unable to do so, and expressly stated that he did not see any tar. At the time of the flashover he was engaged, with his finger and thumb on the brushes, trying to press them down against the surface of the commutator, and his position was such that he could, and did, see both sides of the brushes, as well as the top thereof, and yet he saw no tar there. And nobody, either before, at the time of, or after the accident, saw any tar on the brushes from which the sparking and flashover originated, nor on the revolving commutator on which the brushes rested. (3) Who can believe that a quantity of tar, if any there was, so small that it could not be seen by plaintiff when making his investigation, could, by going through a fire, become so multiplied as to make fifty or sixty or seventy specks as large as a garden pea? Viewed in the most charitable light, it may be that Dr. Baird saw a number of dark specks which he took to be tar, but was honestly mistaken. An honest mistake in that regard reconciles his statements with the other facts. Viewed in any other light, his testimony is so irreconcilable with all other facts, oral and physical, appearing in the case, that no one is justified in giving it credence, and it must be treated "as not amounting to any substantial evidence of the facts to which it relates," and will be disposed of by the court "as if the witness had not spoken." Weltmer v. Bishop, 171 Mo. 116; Oglesby v. Railroad, 177 Mo. 296; Champagne v. Hamey, 189 Mo. 726. (4) Where an injury may have resulted from either of several proximate causes, it is for plaintiff to show "with reasonable certainty," that the cause alleged and for which defendant would be liable, is the one which produced the result. Warner v. Railroad, 178 Mo. 134; Goransson v. Mfg. Co., 186 Mo. 307; Purcell v. Shoe Co., 187 Mo. 288; Trigg v. Land Co., 187 Mo. 227; Browning v. Railroad, 106 Mo.App. 729; Shore v. Bridge, 111 Mo.App. 278; Candle v. Kirkbride, 117 Mo.App. 412; Thornberry v. Mining Co., 126 Mo.App. 660. Where the accident might have resulted from more than one cause, the evidence must not leave the real cause for conjecture. Goransson v. Mfg. Co., 186 Mo. 307; Purcell v. Shoe Co., 187 Mo. 288; Warner v. Railroad, 178 Mo. 134. (5) It does not appear that defendant knew, or ought to have known that tar might, could or would produce flashovers; therefore defendant's demurrer to the evidence should have been sustained. 21 Am. & Eng. Ency. Law, 486; Glover v. Bolt & Nut Co., 153 Mo. 327; Chrismer v. Tel. Co., 194 Mo. 208; Warner v. Railroad, 178 Mo. 134; Fuchs v. St. Louis, 167 Mo. 646; Chandler v. Gas Co., 174 Mo. 329; Railroad v. Kellogg, 94 U.S. 469.

Botsford, Deatherage & Creason for respondent.

(1) The petition states a good cause of action. It alleges that tar had been falling on the machines in the power house where plaintiff was working, for weeks before the flashover which produced the injuries to plaintiff; that defendant had knowledge of this fact; that plaintiff called especial attention to his superior officer, the chief electrician, to that fact; that defendant was negligent in permitting the tar to continue to fall from the roof on the machinery; that the negligence of the defendant in failing to repair the roof and in permitting the tar to fall upon the machinery, caused the flashover on one of its machines and as a direct result thereof plaintiff received the injuries complained of. The defendant answered over to that petition, without filing a demurrer thereto and without filing a motion to make the same more definite and certain. Therefore the petition was good. Even a general allegation of negligence is good after answer is filed, and especially after verdict. R. S. 1909, Sec 2119; Droshagen v. Railroad, 186 Mo. 263; Rodgers v. Ins. Co., 186 Mo. 255; Meier v. Butcher, 197 Mo. 91; Ball v. Neosho, 109 Mo.App. 689; Mueller v. Shoe Co., 109 Mo.App. 514; Conrad v. De Montcourt, 138 Mo. 325; Mack v. Railroad, 77 Mo. 232; Shaw v. Railroad, 104 Mo. 656; LeMay v. Railroad, 105 Mo. 370; Cobb v. Railroad, 149 Mo. 145; Van Cleve v. St. Louis, 159 Mo. 579; Dwerest v. Stamping Co., 163 Mo. 620. (2) It is a matter of common knowledge that tar is inflammable, and an electrician, and particularly the chief electrician of a great electric railway company, should and does know that a flame is a conductor of electricity and that a flashover of the commutator is dangerous to employees who might come in contact therewith. Plaintiff actually warned the chief electrician that it was dangerous for tar to fall on the machinery. (3) Plaintiff put in proof all of the things that may cause a flashover on an electrical dynamo or commutator, and then produced proof negativing every possible cause except the burning of tar. That was more than the law requires. Trigg v. Land Co., 187 Mo. 288; Dunphy v. Stock Yards Co., 118 Mo.App. 512; Powell v. Railroad, 125 N.C. 370; Ray v. Poplar Bluff, 70 Mo.App. 252; Kelly v. Railroad, 70 Mo. 604; Byerly v. Light Co., 130 Mo.App. 593; Settle v. Railroad, 127 Mo. 141; Cambron v. Railroad, 165 Mo. 558. (4) Plaintiff proved affirmatively and conclusively that the flashover was caused from the burning of tar from the very brush which he was trying to adjust. The proof was ample and sufficient under the law. See authorities under point 3. (5) The trial court did not err in overruling defendant's demurrer to plaintiff's evidence. Buesching v. Light Co., 73 Mo. 231; Toohey v. Frevin, 96 Mo. 109; ...