Smith v. Bridge Company, 28497.

Citation30 S.W.2d 1077
Decision Date04 September 1930
Docket NumberNo. 28497.,28497.
CourtUnited States State Supreme Court of Missouri
PartiesJOSEPH W. SMITH v. SOUTHERN ILLINOIS & MISSOURI BRIDGE COMPANY, Appellant.

Appeal from Circuit Court of City of St. Louis. Hon. Anthony F. Ittner, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Angert and Ralph T. Finley for appellant.

(1) The evidence wholly fails to show any actionable negligence on the part of the defendant. While engaged in the repair of its tracks defendant had a right to temporarily leave the necessary materials along the tracks or on the footway. There is no evidence that the materials that were between the tracks were not necessary or proper in the construction work that was being done. 3 Labatt's Master & Servant (2 Ed.) sec. 984, p. 2656; Starkey v. Greenville, 189 Mo. App. 361; Williams v. Railroad, 119 Mo. 319, 63 S.W. 695. (2) The plaintiff's case was submitted on the theory that the wire on the footway caused him to fall, but the evidence is wholly conjectural as to the cause of his fall. A verdict based upon such evidence cannot stand. Marlowe v. Kilgen, 252 S.W. (Mo.) 426. (3) The demurrer to the evidence should have been sustained, because the plaintiff's own evidence shows that he was guilty of contributory negligence as a matter of law. Hurst v. Railway Co., 163 Mo. 321; Marlowe v. Kilgen, 252 S.W. (Mo.) 426; Waldmann v. Skrainka Const. Co., 289 Mo. 633; Woodson v. Railroad, 224 Mo. 685; Wheat v. St. Louis, 179 Mo. 572; Craine v. Railway Co., 246 Mo. 393; Mullen v. Mercantile Co., 260 S.W. (Mo.) 982. A servant cannot recover where he blindly or heedlessly steps into a place of danger without taking any precautions for his own safety. Gibson v. Railway Co., 23 Ore. 493, 32 Pac. 296; Degonia v. Railroad, 224 Mo. 564; Williams v. Railroad, 257 Mo. 114. (4) Plaintiff's Instruction 1 is erroneous in failing to properly define the duty of the defendant toward the plaintiff with respect to furnishing a safe place to work. Barber v. Am. Car & Foundry Co., 14 S.W. (2d) 482; Forrester v. Fire Clay Prod. Co., 231 S.W. (Mo. App.) 671. Since said instruction covers the case, this and other errors therein are not cured by proper instructions on the part of the defendant. State ex rel. v. Ellison, 272 Mo. 583, 199 S.W. 984; Hall v. Coal & Coke Co., 260 Mo. 351, 168 S.W. 927; Jaquith v. Fayette Plumb, 254 S.W. (Mo.) 93. (5) The court erred in admitting the testimony of the witness, Conductor Douglas, that shortly after the accident he asked plaintiff what caused it, and plaintiff stated he had caught his feet in "wire or something." Said statement was not a spontaneous exclamation, or one against plaintiff's interest, making it a part of the res gestae. Nahorski v. Elec. Term. Rys. Co., 271 S.W. (Mo.) 751; Nahorski v. Same, 310 Mo. 235; Rosenweig v. Wells, 308 Mo. 629; Pryor v. Payne, 304 Mo. 567, 574. The statement was not a part of the res gestae. Landau v. Travelers Ins. Co., 305 Mo. 563; Landau v. Travelers Ins. Co., 315 Mo. 760; Barker v. Ins. Co., 126 Mo. 148; Ruschenberg v. Electric Co., 161 Mo. 79; Koenig v. Railway Co., 173 Mo. 721; Redmon v. Railway Co., 185 Mo. 11.

Charles P. Noell and Hensley, Allen & Marsalek for respondent.

(1) The case made by plaintiff's evidence was one for the jury, and the trial court properly overruled appellant's demurrer to the evidence. (a) The evidence sufficed to establish a negligent breach of duty on the part of appellant, as master, in failing to exercise due care to provide plaintiff with a reasonably safe place to work and to keep that place reasonably safe, in that appellant needlessly and negligently placed and left a lot of material, including wire, about and between the tracks upon its bridge over which the plaintiff was required to pass in the night time in the performance of his duties, when appellant knew, or by the exercise of ordinary care would have known, that the same rendered plaintiff's place to work not reasonably safe, but highly dangerous, under the circumstances. Vordermark v. Hill-Behan Lumber Co., 12 S.W. (2d) 498; Cross v. Railroad Co., 191 Mo. App. 202; Porter v. Mo. Pac. Railroad Co., 267 S.W. 965; Holloway v. Ry. Co., 276 Mo. 490, 502; Jablonowski v. Cap Mfg. Co., 312 Mo. 173; Edmondson v. Hotels Statler, 306 Mo. 216; Brown v. Ry. Co., 227 S.W. 1069; Koonse v. Steel Works Co., 221 Mo. App. 1231; Johnson v. Bolt & Nut Co., 172 Mo. App. 214; Bone v. Contracting Co., 191 S.W. 1062; Campbell v. Aunt Jemima Mills Co., 211 Mo. App. 670; Arnold v. Graham, 219 Mo. App. 249; Pyle v. Light & Power Co., 246 S.W. 979; Soltesz v. Provisions Co., 260 S.W. 990; Hunter v. Amer. Brake Co., 231 S.W. 659. (b) The duty which the law casts upon the master with respect to furnishing his servant a reasonably safe place to work requires the master to use all reasonable precautions which ordinary prudence would dictate, under the particular circumstances, with reference to the dangers to be reasonably anticipated, to avoid subjecting the servant to risk of injury. Stewart v. Gas Light Co., 241 S.W. 909; Knott v. Mo. Boiler Works, 299 Mo. 613, 638; Williamson v. Light & Power Co., 281 Mo. 544; Henderson v. Stove & Mfg. Co., 197 S.W. 190; Walsh v. Union Quarry & Const. Co., 205 Mo. App. 159, 168. (c) Since the evidence shows that the act of placing and leaving these obstructions on the bridge was the act of the appellant, and that it had actual knowledge thereof, the length of time that such dangerous condition had existed is immaterial. Jablonowski v. Cap Mfg. Co., 312 Mo. 173; Vordermark v. Lumber Co., 12 S.W. (2d) 502; Midway Bank & Trust Co. v. Davis, 288 Mo. 563; Stubbs v. American Press, 254 S.W. 110; Morgan v. Zinc Co., 199 Mo. App. 26, 32. (d) In passing upon the demurrer to the evidence, the evidence must be viewed in the light most favorable to plaintiff, giving plaintiff the benefit of every inference of fact which a jury might, with any degree of propriety, have inferred in his favor; and no inferences of fact in favor of the appellant will be allowed to countervail or overthrow inferences favorable to the plaintiff. Buesching v. Gas Light Co., 73 Mo. 219, 231; Goucan v. Cement Co., 317 Mo. 919; Stewart v. Gas Light Co., 241 S.W. 909; Stahl v. Ry. Co., 287 S.W. 629; Baker v. W.U. Tel. Co., 287 S.W. 806. (e) Under the evidence in this record, plaintiff cannot be held to be guilty of contributory negligence as a matter of law. Plaintiff was only required to exercise ordinary care for his own safety; and, under the circumstances, he cannot be said to have been negligent, as a matter of law, in failing to observe and avoid the particular material which caused his injury. Edmondson v. Hotels Statler Co., 306 Mo. 216, 230; Culver v. Minder Coal Co., 286 S.W. 745; McGowan v. Am. Mfg. Co., 270 S.W. 423; Eaton v. Wallace, 287 S.W. 614; Vordermark v. Lumber Co., 12 S.W. (2d) 503; Williamson v. Light & Power Co., 281 Mo. 544; Jewell v. Bolt & Nut Co., 231 Mo. 176, 201; Buckner v. Horse & Mule Co., 221 Mo. 700; Burkard v. Rope Co., 217 Mo. 466, 481; Unrein v. Hide Co., 295 Mo. 353, 366; McCloskey v. Investment Co., 317 Mo. 1156. (2) Plaintiff's instruction 1 did not too broadly state appellant's duty with respect to furnishing plaintiff a safe place to work, since, when read as a whole, it requires the jury to find not only that the appellant placed and left the material in the "footway," and that this rendered the footway dangerous and not reasonably safe, but further required the jury to find that appellant was negligent (i.e., failed to exercise ordinary care) in so placing said materials. Bradley v. Ry. Co., 138 Mo. 293; Garard v. Coal & Coke Co., 207 Mo. 242, 259; Smith v. Fordyce, 190 Mo. 1, 12; Stobile v. McMahan, 196 Mo. App. 93; Crader v. Railroad, 181 Mo. App. 526; Hutson v. Mo. Stair Co., 296 S.W. 218. What was meant by the use of the words "negligently" and "negligent" in plaintiff's Instruction 1. was fully supplied by appellant's instructions 3 and 6, the former of which told the jury that appellant's sole duty was to exercise ordinary care to furnish plaintiff with a reasonably safe place to work. The instructions must be read and considered as a whole; an ambiguous or general term in one instruction may be explained by another, or a partial view may be supplemented, provided the instructions as a whole are consistent and harmonious. Jablonowski v. Modern Cap Co., 312 Mo. 173; Schultz v. Schultz, 293 S.W. 105; Rudy v. Autenrieth, 287 S.W. 852; Gibler v. Term. Ry. Association, 203 Mo. 208; Patterson v. Evans, 254 Mo. 293; Morrow v. Gas etc. Co., 286 S.W. 106; Sitts v. Daniel, 284 S.W. 857; Elstroth v. Karranbrock, 285 S.W. 525. (3) The statement of plaintiff made to the conductor, when the latter hurried back to plaintiff immediately after the casualty, was admissible as a part of the res gestae. Talbert v. C.R.I. & P. Co., 284 S.W. 501; Pryor v. Payne, 304 Mo. 560; Rosenweig v. Wells, 308 Mo. 617; Beeson v. Fleming, 285 S.W. 708; Barz v. Fleischmann Yeast Co., 308 Mo. 288; Unrein v. Oklahoma Hide Co., 295 Mo. 353; Leahy v. Railroad, 97 Mo. 165; Munoz v. Amer. Car. & Foundry Co., 296 S.W. 231.

LINDSAY, C.

This is an action for damages for personal injuries, wherein the plaintiff had a verdict for $10,000, and defendant appealed from the judgment entered thereon. The suit was brought against appellant, Southern Illinois & Missouri Bridge Company, and also against the Missouri Pacific Railway Company, the St. Louis-Southwestern Railway Company, and the Chicago & Eastern Illinois Railway Company. At the close of plaintiff's case he dismissed as to all the defendants except the appellant.

The plaintiff was employed by appellant as a guard or watchman, on the bridge owned and controlled by appellant over the Mississippi River between Thebes, Illinois, and Illmo, Missouri. Appellant maintained double tracks upon the bridge for the passage of railroad trains. There was a board walk, about three feet wide running the length of the bridge...

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