Snyder v. Am. Car & Foundry Co.

• Citation: 14 S.W.2d 603
• Decision Date: 02 March 1929
• Docket Number: No. 27170.,27170.
• Court: United States State Supreme Court of Missouri
• Parties: EDWARD SNYDER v. AMERICAN CAR & FOUNDRY COMPANY, Appellant.

14 S.W.2d 603

EDWARD SNYDER v. AMERICAN CAR & FOUNDRY COMPANY, Appellant.

No. 27170.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Circuit Court of City of St. Louis — Hon. H.A. Hamilton, Judge.

AFFIRMED.

Watts & Gentry for appellant; G.A. Orth of counsel.

(1) The court erred in permitting Dr. Gray Briggs to testify to the mere possibility of a spine injury being caused by such a fall as plaintiff had when he alighted on his feet. The true test is not whether it is barely possible for such an injury to result, but whether it is reasonably probable that the fall was the cause of such an injury. Mahaney v. Rys. Co., 228 S.W. 821. (2) The court erred in overruling defendant's motion to discharge the jury after all the conversation that had occurred between the court and counsel for both sides relating to the condition of plaintiff's spinal cord, to failure of plaintiff to allege that such condition was caused by his fall, to his application for leave to amend the petition, to the granting of such leave, and, finally, to the abandoning of his application. So much occurred in the presence of the jury that tended to impress the jurors with the nature of plaintiff's spinal condition that the impression could not be eradicated by an instruction to disregard that condition. Trent v. Prtg. Co., 141 Mo. App. 437; State v. Barnes, 286 Mo. 665; Gore v. Brockman, 138 Mo. App. 23; Wojtylak v. Coal Co., 188 Mo. 260; Levels v. Railroad, 196 Mo. 606; Lewellen v. Haynie, 287 S.W. 634. It is impossible to tell how much the verdict was increased by consideration of injury to the spine and, therefore, ordering a remittitur (as was done) could not cure the error. Gibler v. Term Railroad Assn., 203 Mo. 208; Davis v. Davis, 235 S.W. 182; Lewellen v. Haynie, supra. (3) The court erred in overruling the demurrer to the evidence at the close of the whole case. Plaintiff's evidence failed to bring the case within the department rule recognized in Koerner v. Car Co., 209 Mo. 141. Prima facie, plaintiff and Rodgers, who injured him, were fellow-servants. The burden was on plaintiff to show that they were not fellow-servants, but he failed to so show. Guthrie v. Gillespie, 6 S.W. (2d) 886; McGowan v. Railroad, 61 Mo. 528; Blessing v. Ry. Co., 77 Mo. 410. There was a total failure of proof necessary to show that the business of defendant was divided into separate and distinct departments of service and that the plaintiff and the servant who injured him were in separate and distinct departments within the meaning of the law. Parker v. Railroad Co., 109 Mo. 409; Oker v. Const. Co., 158 Mo. App. 213. Plaintiff's bare statement that Kellerhouse was not in the same department in which he was employed constituted a mere scintilla of evidence, which was wholly insufficient to establish the fact that plaintiff was in a separate and distinct department of service from Kellerhouse and his men. A mere scintilla will be disregarded. Near v. Railroad, 261 Mo. 91; Peck v. Railway, 31 Mo. App. 126; Layton v. Chinberg, 282 S.W. 434; David v. Clarksville Cider Co., 171 S.W. 594. Plaintiff and the servant who caused his injury were mere fellow servants. Ryan v. Lea, 249 S.W. 683; Oker v. Const. Co., 158 Mo. App. 213; Johnson v. Railway, 104 Mo. App. 588; Van Bibber v. Swift & Co., 286 Mo. 317; Jackson v. Mining Co., 106 Mo. App. 441: Card v. Eddy, 129 Mo. 510; Padgett v. Scullin-Gallagher Co., 160 Mo. App. 544; Relyea v. Railroad Co., 112 Mo. 86; Jones v. Tobacco Co., 284 S.W. 513. Rodgers' act in moving the wheels without notice was the mere act of a fellow servant which constituted one of the details of the work and was not the violation of a non-delegable duty by the master. Burge v. Am. Car & Foundry Co., 274 S.W. 842; Rowe v. U. Rys. Co., 211 Mo. App. 526; Hawk v. McLeod Lbr. Co., 166 Mo. 121; McIntyre v. Tebbetts, 257 Mo. 117. (4) The court erred in giving Instruction 3 at the request of plaintiff. This instruction entirely ignored the department rule, and, instead of requiring the jury to find as a condition of plaintiff's right of recovery, that he and the servant who injured him were in separate and distinct departments of service, it permitted recovery if the wheels were rolled without any warning being given, no matter what servant of defendant did the negligent act. McGowan v. Railroad, 61 Mo. 528; Blessing v. Railway Co., 77 Mo. 410; Guthrie v. Gillespie, 6 S.W. (2d) 886. (5) The judgment is excessive. Stolze v. Transit Co., 188 Mo. 581.

Douglass & Inman for respondent.

(1) The evidence objected to was stricken out by the court on motion of defendant, and hence there is no such evidence in the record as complained of in the first assignment of error. (2) The second error assigned by defendant is the failure of the court to discharge the jury on its motion therefor, but the defendant in its motion for a new trial failed to allege this as error or as ground for a new trial, and, therefore, this alleged error is not reviewable by this court. Kirby v. Heaton, 315 Mo. 338. (3) The only ground upon which defendant claims its demurrer should have been sustained is its claim that the evidence shows that Rodgers (the servant who injured plaintiff) was a fellow-servant of the plaintiff. But, the question of fellow-servant is not in the case for three reasons: (a) The injury to plaintiff was caused by the failure of defendant to furnish plaintiff a reasonably safe place to work, and this duty is non-delegable. Chulick v. Car & Foundry Co., 199 S.W. 437; Koerner v. Car Co., 209 Mo. 141; Bender v. Grocer Co., 310 Mo. 488; McNulty v. Cement Co., 249 S.W. 734. (b) If the departmental doctrine was in the case, then plaintiff's evidence shows that he and Rodgers were in different departments, under different foremen and engaged in a different class of work, and this brought the case within the departmental doctrine. Koerner v. Car Co., 209 Mo. 141. (c) The defendant at the trial did not rely on the fellow-servant doctrine either in eliciting the evidence in developing its defense or in its instructions given or refused. On appeal the defendant is bound by the theory it tried the case on in the lower court. Guthrie v. Gillespie, 6 S.W. (2d) 886; St. Louis v. Contracting Co., 210 Mo. 491; Kane v. McMenamy, 307 Mo. 98. Defendant asked no instruction on the theory it was not liable if plaintiff and Rodgers were fellow-servants, and hence this court will not consider on appeal the fellow-servant doctrine, as it was not raised in the lower court. Pienieng v. Wells, 271 S.W. 66; Vitale v. Wells, 285 S.W. 522. (d) If the injury was caused by the combined negligence of Rodgers and one of defendant's foremen, either in ordering plaintiff to work without some method of protecting him or in rolling wheels without providing for warning, and it be conceded Rodgers was a fellow-servant, then plaintiff can recover. McNulty v. Cement Co., 249 S.W. 734. (4) The fourth error assigned is alleged error in giving Instruction 3, which failed to present the issue whether plaintiff and Rodgers were fellow-servants. This criticism is fully covered by what is said in Point 3. As the evidence of plaintiff at least raised an inference that plaintiff and defendant worked in different departments, which was not controverted by defendant, then it is not error to assume as true an undisputed fact in issue. State ex rel. v. Trimble, 260 S.W. 1003; Koenig v. Wells, 242 S.W. 118. (5) The evidence clearly discloses that the verdict is not excessive, and the trial court was not warranted in reducing the verdict to the amount he did. Godfrey v. Payne, 251 S.W. 133; O'Meare v. Hayden, 75 Cal. 801. The jury had a right to consider the injury to plaintiff's legs, and the loss of sensation in his legs, as this evidence was not only not objected to by defendant, but defendant put on its doctor and examined him as to this condition, and consented to have his injuries considered by the jury. Elliott v. Rys. Co., 157 Mo. App. 517; Bragg v. Rys. Co., 192 Mo. 331; Mellow v. Railroad, 105 Mo. 455; Realty Co. v. Ryan, 218 S.W. 413; Fisher & Co. v. Realty Co., 159 Mo. 562.

HENWOOD, C.

This is an action for damages, in which Edward Snyder, plaintiff below, obtained a verdict in the sum of $15,000, for personal injuries suffered by him while employed by the defendant company. By an order of remittitur, with which plaintiff complied, his award of damages was reduced to $9,000, and, from the judgment for that amount, an appeal to this court has been perfected. (Two of the defendant company's foremen, Alfred Wenchel and Joseph Kellerhouse, were originally joined as defendants, but the trial court directed a verdict in their favor).

Plaintiff was employed as a painter at defendant's plant, in St. Charles, Missouri, where he had worked for seventeen years. The plant consisted of various buildings, shops, tracks, and other equipments, used in the manufacture of railroad cars. According to his testimony, plaintiff worked under the directions of Wenchel, a foreman of the paint department, and Rodgers, another employee of defendant, worked under the directions of Kellerhouse, a foreman of a different department, the wood department. The steel track extended north and south along the east side of the steel plant and the machine shop. The machine shop was some distance south of the steel plant, and, between these two buildings, there was a transfer table, by which cars and wheels were transferred from the steel track to other tracks, extending east and west, and vice versa. The shipping track, immediately east of the steel track and parallel thereto, was about four or five inches higher than the steel track, and the inside rails of the two tracks were about six feet apart. Plaintiff thus indicated the relative location of these buildings and tracks and the transfer table by referring to two photographs (Plaintiff's Exhibits A & B).

On the morning of September 18, 1923, Wenchel directed p...