St. Louis & Hannibal R. Co. v. Walsh Fire Clay P. Co.

• Decision Date: 05 November 1930
• Docket Number: No. 21304.,21304.
• Citation: 32 S.W.2d 97
• Court: Missouri Court of Appeals
• Parties: ST. LOUIS & HANNIBAL R. CO. v. WALSH FIRE CLAY PRODUCTS CO.

32 S.W.2d 97

ST. LOUIS & HANNIBAL R. CO. v. WALSH FIRE CLAY PRODUCTS CO.

No. 21304.

St. Louis Court of Appeals. Missouri.

November 5, 1930.

Error to Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by the St. Louis & Hannibal Railroad Company against the Walsh Fire Clay Products Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

T. M. Pierce and Samuel H. Liberman, both of St. Louis, for plaintiff in error.

J. D. Hostetter, of Bowling Green, for defendant in error.

BECKER, J.

This case is here on a writ of error. When the case was here before on appeal, we held that plaintiff had made out a case for the jury, but reversed the judgment and remanded the cause for prejudicial error, in that plaintiff's main instruction, which covered the entire case and directed a verdict, was defective, in that it did not require that the jury, as a prerequisite for a verdict in plaintiff's favor, find that the alleged act of negligence was the direct and proximate cause of the injury complained of. St. Louis & Hannibal Railroad Co. v. Walsh Fire Clay Co. (Mo. App.) 16 S.W.(2d) 616.

Plaintiff at the second trial again recovered judgment against defendant, this time in the sum of $2,400, and the defendant in due course sues out this writ of error. The action is for damages based upon the alleged negligence of defendant in handling, managing, and manipulating a freight car loaded with clay, permitting it to get out of its control and to run wild down a side track adjoining defendant's plant and on to plaintiff's main line track, where the car of clay ultimately crashed into the rear of a passenger train belonging to plaintiff, which was standing at Silex, Mo.

An examination of the record discloses that the pleadings in the case have remained the same. At the second trial of the case, however, we find that the case was submitted to the jury upon evidence adduced on behalf of the plaintiff alone, whereas at the first trial the defendant had offered the testimony of a number of witnesses and six exhibits—being photographs—which evidence of defendant not alone supplemented that of plaintiff, but aided plaintiff in the making of a case for the jury.

After a careful consideration of the record before us, we have come to the conclusion, and so hold, that plaintiff failed to make out a case for the jury, and that the trial court erred in overruling the demurrer offered by defendant at the close of the case.

Plaintiff's petition is based upon allegations that plaintiff constructed, owned, operated, and maintained a switch track for the use and benefit of the defendant at a loading dump near one of defendant's clay pits in Lincoln county; that on September 9, 1925, a car loaded with clay crashed into and collided with the rear end of plaintiff's regular south-bound train, which was standing at the station at Silex, Mo., damaging the car containing the clay, which was the property of defendant, as well as the cars and contents of the same, and the locomotive attached to said cars, constituting its said train standing at said station. It is further alleged that the said car of clay was one which defendant had loaded at its clay pit, operated by and under the control of defendant, and that, by reason of negligence on defendant's part, its agents and servants, in handling, managing and manipulating said car of clay, it was negligently allowed to escape from said clay pit and run wild on a down grade from said track and onto plaintiff's main track, gaining momentum as it proceeded until it crashed into plaintiff's train as aforesaid.

Defendant's answer was a general denial and a further plea that the damage, if any, was the direct and proximate result of the negligence of the plaintiff, in that the car in question which contained the clay, and which ran into plaintiff's train, was furnished the defendant by plaintiff; that the brakes on said car were defective, unsafe, and inoperative; that the plaintiff had exclusive control and management of the switching operations whereby empty cars were placed on the side track adjoining the defendant's loading dump, and it was the duty of plaintiff to properly couple such cars as might be left upon defendant's side track, and that plaintiff negligently switched the said car with defective brakes onto said side track, together with other cars, and negligently failed to couple the said defective car to the car next to it in a safe and secure manner; that, in order to enable defendant to load the cars after they had been placed on the side track by plaintiff company, it was necessary that defendant, after a car was loaded at its loading dump, to move the loaded car forward so as to place the next empty car at the dump for loading; that the side track had been constructed, owned, operated, and maintained exclusively by plaintiff, and had been equipped by plaintiff with a...