HENWOOD, C.
This is a proceeding by certiorari to review the record of the Kansas City Court of Appeals relating to the affirmance
of a judgment against the Chicago Great Western Railroad Company and George H. Morris, its foreman, relators herein. In the original suit, William Neely obtained a judgment for $5,000 against relators for personal injuries suffered by him while in the employ of said railroad company, and while working under the direction of its said foreman. Relators now seek to quash the record of the Court of Appeals, alleging a conflict between the opinion of that court and controlling decisions of this court.
In the opinion under review, the facts are stated as follows:
"The facts show that plaintiff was injured on the 17th day of October, 1924, by the falling of a railroad car wheel upon his leg while he was in the employ of the defendant railroad company as a common laborer at its shops in Kansas City, Missouri. Carloads of metal freight car wheels were received at this shop in box cars from time to time and it was plaintiff's duty to assist in unloading these wheels. The wheels were about 32 inches in diameter, weighed 750 pounds and had holes in their center for the insertion of a journal or axle. These holes were about 8 inches deep through the hub, with a diameter from 6½ to 7 inches; the wheels came from the foundry and the holes for the axles were more or less roughly bored. The wheels were conveyed to the shops of the defendant railroad company for the purpose of having them bored or drilled out so that they would fit the journals or axles. Some of the wheels in the car would be down flat, or nearly so, upon the floor of the car, in which case it would be necessary to raise them up on end in order to roll them out of the car and onto the platform at the shop. Defendant railroad company for the purpose of raising the wheels furnished plaintiff and his colaborers with a gas or water pipe about 1½ inches in diameter and from 6½ to 7 feet long. This pipe would be inserted in the hole in the center of the wheel and two men would bear down upon the pipe, raising the wheel up to nearly a perpendicular position when one of the men would take hold of the wheel from the opposite side and roll it out of the door of the car. The work was being done under the immediate direction and supervision of the defendant, Morris, who was and had been at all times the foreman of the defendant railroad company in the doing of the work and was always present when wheels were removed.
"Plaintiff's testimony tended to show that the pipe was the only tool furnished by defendant railroad company for the doing of the work and was used by him in compliance with the suggestion of Morris. The pipe being iron and smooth and working against iron, frequently slipped in the hole when the car wheels were being raised prior to plaintiff's injury and at least on one occasion another employee came very near being hurt by a wheel slipping off the pipe and falling. At the time plaintiff was injured, two employees, Nemecek and Jones, had placed one end of the pipe in the journal hole of one of the wheels that was lying flat or nearly so on the floor near the door and within six inches of the side of the car. They had raised the wheel in the usual manner, their end of the pipe having been brought to the floor of the car. Plaintiff, whose duty it was to grasp the wheel after it was raised and roll it from the car, stepped into a position, with one foot between the wheel and the side of the car, to receive the wheel but before he could grasp the wheel the pipe slipped and the wheel fell and caught his leg, breaking the same below the knee.
"At the time of the removal of the wheel in question from the car, Morris was checking the number on the wheels before they left the car and stood in the car within a few feet of plaintiff. The evidence shows that plaintiff and other employees of defendant railroad had often complained to Morris of the danger connected with the use of the iron pipe and requested that a `wheel stick' be furnished for the use of the laborers and that Morris had promised to provide such a stick. The evidence shows that a `wheel stick' is a stick customarily used in work of this kind and consists of a wooden pole or stick about 6 feet long that fits snugly into the journal hole in the wheel. Plaintiff testified that such a stick `is made pretty near to fit in the journal hole' and that it tapers down at the end where it is handled by the laborers. The inference to be drawn from the testimony is that a pole that fits snugly into the hole in the wheel is less likely to slip than one fitting loosely. Plaintiff testified that he told Morris at one time that the iron pipe `was too small for the hole in the wheel'; that he asked Morris `three or four different times * * * didn't he think the pipe was dangerous' and that Morris admitted that it was and said to plaintiff, `You boys be careful and I will get you a stick as soon as I can.' Morris said that he had seen wheels slip off the iron pipe on several occasions and remarked, `I am going to try to get sticks for the next car.' One of plaintiff's witnesses testified that, `We never unloaded a car but what those wheels didn't slip out.'
"According to defendants' evidence there were a number of wheel sticks in the wheel shop adjacent to the platform upon which the car wheels were being loaded and these sticks were of wood, about 5 or 6 feet long and about 3 inches in diameter. Morris, testifying for defendants, stated that a wheel stick of this character was in the car for the use of the laborers, if they saw fit, at the time plaintiff was hurt. Plaintiff denied this. The evidence shows that plaintiff was a man of mature age and was familiar with the work in question, having been engaged in it for a long time prior to his injury."
I. Relators contend that the opinion of the Court of Appeals conflicts with the rulings of this court, in holding that the plaintiff was properly permitted to prove that the wheels were "likely" or "liable" to slip off of the iron pipe.
It appears in the opinion that this evidence was developed on the cross-examination of defendants' witness Brown, who was experienced in the handling of wheels and wheel sticks by railroad companies, and that an ordinary person would not be familiar with the method and means by which the wheels in question were handled by plaintiff and his coemployés. Under these circumstances, the Court of Appeals properly ruled that such expert testimony did not invade the province of the jury, but was helpful to them in determining the issues of the case, and was, therefore, clearly admissible, citing Combs v. Construction Co., 205 Mo. 367, 104 S. W. 77, and Meily v. Railroad Co., 215 Mo. 567, 114 S. W. 1013. See also, Crecelius v. Ry. Co., 284 Mo. 26, 42, 223 S. W. 413; Kidd v. Ry. Co., 310 Mo. 1, 44, 274 S. W. 1079.
II. It is also contended that the opinion of the Court of Appeals is in conflict with the rulings of this court, as to the propriety of certain given and refused instructions.
(a) Our attention is first directed to the...
