Steeley v. Kurn

• Decision Date: 04 January 1941
• Docket Number: 36678
• Parties: Claude Steeley v. J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

146 S.W.2d 578

347 Mo. 74

Claude Steeley v. J. M. Kurn and John G. Lonsdale, Trustees of the St. Louis-San Francisco Railway Company, a Corporation, Appellants

No. 36678

Supreme Court of Missouri

January 4, 1941

Rehearing Denied December 11, 1940.

Motion to Transfer to Banc Denied January 4, 1941.

Appeal from Henry Circuit Court; Hon. Charles A. Calvird Judge.

Reversed.

E G. Nahler, Charles E. Hassett and Mann & Mann for appellants.

(1) Plaintiff's testimony that "Murphy dropped it," and that is all that appears in the record as to Murphy's conduct, is insufficient to warrant the jury in finding that Murphy was guilty of negligence in dropping it. Neth v. Delano, 184 Mo.App. 654, 171 S.W. 1; Hawley v. Lusk, 184 S.W. 1174; Davidson v. St. L.-S. F. Ry. Co., 229 S.W. 786; Davidson v. St. L.-S. F. Ry. Co., 301 Mo. 79, 256 S.W. 169. (a) Until destroyed by evidence of probative value the presumption is that Murphy exercised ordinary care and was not negligent. Haggard v. McGrew C. Co., 200 S.W. 1074; Hartwell v. Parks, 240 Mo. 537; Whitesides v. C., B. & Q. Ry. Co., 186 Mo.App. 620; Yarnell v. Kansas City, F. S. & M. Ry. Co., 113 Mo.App. 579. (b) Where the injury may have resulted from one of two or more causes, for one of which, but not the other, defendant would be liable, plaintiff must show, with reasonable certainty, that the cause for which defendant is liable produced the result; that showing was not made in this case. Luettecke v. St. Louis, 140 S.W.2d 51; Warner v. St. Louis & M. Ry. Co., 178 Mo. 134; State ex rel. Trading Post Co. v. Shain, 342 Mo. 593, 116 S.W.2d 102; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 317; Hayes v. Kresge Co., 100 S.W.2d 329; Cain v. Talge Lounge Co., 222 Mo. 508. (c) Plaintiff assumed the risk as a matter of law. Arnold v. Scandrett, 131 S.W.2d 542; Jones v. St. L.-S. F. Ry. Co., 325 Mo. 1153, 30 S.W.2d 483; York v. St. L.-S. F. Ry. Co., 333 Mo. 105, 62 S.W.2d 475; McCormick v. Hutchison E. Co., 326 Mo. 380, 31 S.W.2d 971; Hunter v. Busy Bee Candy Co., 307 Mo. 668, 271 S.W. 803; O'Dell v. St. L.-S. F. Ry. Co., 281 S.W. 456; Frederick v. Erie Co., 36 F.2d 718; Chesapeake & O. Railroad Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; Southern P. Railroad Co. v. Bershire, 254 U.S. 415, 65 L.Ed. 335; McAdoo v. Auzellott, 271 F. 268. (2) Where two or more acts of negligence are submitted in the disjunctive, the evidence must be sufficient to support both. If it fails to support either, the instruction is fatally erroneous. Kuhn v. St. L.-S. F. Ry. Co., 281 Mo. 342; Whitehead v. Fagelman, 44 S.W.2d 61; Morris v. Waggoner E. Co., 243 S.W. 426; Bonarrens v. Lead Belt Ry. Co., 309 Mo. 65, 273 S.W. 1047.

Sylvan Bruner, Vance Julian and Sizer & Myers for respondent.

Because a prima facie case of negligence was made. The record discloses that Murphy's conduct in "deliberately" dropping the rod was ample and sufficient to warrant the jury in finding that Murphy was guilty of negligence. No other conclusion could have been reached by the jury, since the testimony of all of the defendants' witnesses shows that the rod did not slip from Murphy's hand, nor did Murphy stumble, nor was the dropping of it caused by any stumble or slip of any of Murphy's coemployees. Karagas v. Union Pac. Ry. Co., 232 S.W. 1100; Wheeler v. Mo. Pac. Ry. Co., 322 Mo. 271, 18 S.W.2d 494, 74 L.Ed. 621; Jones v. St. L.-S. F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94; Walls v. Thompson, 119 S.W.2d 43; Martin v. Union Pac. Ry. Co., 253 S.W. 513; Neth v. Delano, 184 Mo.App. 654, 171 S.W. 1; Hawley v. Lusk, 184 S.W. 1173; Davidson v. St. L.-S. F. Ry. Co., 229 S.W. 786; Id., 301 Mo. 79, 256 S.W. 169. Because the defendants filed a general demurrer at the close of the whole case, which the court overruled. No withdrawal instructions were offered by the defendants; hence, if plaintiff made a case under any of the alleged specifications of negligence, the demurrer was properly overruled. Torrance v. Pryor, 210 S.W. 430; State ex rel. Miss. River & B. T. Railroad Co. v. Allen, 308 Mo. 487, 272 S.W. 925; Ray v. Marquette Cement Mfg. Co., 273 S.W. 1078; Motz v. Watson, 284 S.W. 837; Seewald v. Gentry, 220 Mo.App. 367, 286 S.W. 445; Kirkpatrick v. Amer. Creosoting Co., 225 Mo.App. 774, 37 S.W.2d 996; Curtis v. Kansas City Pub. Serv. Co., 74 S.W.2d 255; Lehay v. Winkel, 251 S.W. 483; Mills v. Steadley & Co., 279 S.W. 160; Packer v. C., M. & St. P. Ry. Co., 265 S.W. 119. Because the presumption that Murphy was exercising ordinary care was destroyed by positive evidence that Murphy "deliberately" dropped the rod. Because the evidence shows with absolute certainty that the plaintiff's injuries were caused by Murphy "deliberately" dropping the rod, and without giving any warning. Because there was ample evidence to warrant the jury's finding that Murphy was negligent in failing to warn the plaintiff that he was going to "deliberately" drop the rod. Johnson v. Waverly Brick & Coal Co., 276 Mo. 42, 205 S.W. 615; Young v. Lusk, 268 Mo. 625, 187 S.W. 849; Gettys v. Amer. Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 85; Phillips Petroleum Co. v. Jenkins, 82 S.W.2d 264; Headdy v. Wright Tie Co., 262 S.W. 447. Because the plaintiff did not assume the risk as a matter of law. Under the Federal Employers' Liability Act, the doctrine of assumption of risk certainly has no application when Murphy "deliberately" dropped the rod, the dropping of which the plaintiff could not have foreseen or expected. Walls v. Thompson, 119 S.W.2d 43; Chicago, R. I. & P. Railroad Co. v. Ward, 252 U.S. 18, 40 S.Ct. 275, 64 L.Ed. 430; Jones v. St. L.-S. F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94; Sumner v. Ann Arbor Ry. Co., 209 N.W. 184; Chapman v. U.S. Express Co., 159 N.W. 308; Chesapeake & O. Railway Co. v. Proffitt, 241 U.S. 462, 69 L.Ed. 1102; Webb v. C. & O. Ry. Co., 144 S.E. 100; State ex rel. St. L.-S. F. Ry. Co. v. Cox, 329 Mo. 292, 46 S.W.2d 849; McIntyre v. St. L.-S. F. Ry. Co., 286 Mo. 234, 227 S.W. 1047; Bird v. St. L.-S. F. Ry. Co., 336 Mo. 316, 78 S.W.2d 389; Jones v. St. L.-S. F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94.

OPINION

Gantt, J.

Action under the Federal Employers' Liability Act. Plaintiff and three fellow employees (Murphy, Mahan and Shirley) were lifting a steel rod (weighing 455 pounds) from the floor of the roundhouse to a wagon for movement to the machine shop. Plaintiff and Murphy lifted one end of the rod. Shirley and Mahan lifted the other end of the rod. Plaintiff testified that when the rod had been lifted "crotch high" Murphy suddenly dropped (released his hold) the rod, thereby causing additional weight on plaintiff which twisted his body and injured him. He also testified that he was looking at Murphy at the time and that Murphy "just deliberately turned it loose."

The three fellow employees and Garrison, the foreman who was present, testified that no such thing occurred; that when the rod had been lifted twelve inches from the floor, plaintiff released his hold on the rod, stating that he "had a twitch in his back." They also testified that Murphy, Mahan and Shirley continued lifting and placed the rod on the wagon.

On cross-examination by plaintiff there was testimony as follows: "Murphy testified that he didn't turn loose of the rod with either hand, nor did he stumble nor did the rod slip from his hand in any manner whatsoever. Mahan testified that there was no slip or stumble by either of the men who had hold of the rod. Shirley testified that neither Murphy's hands, nor Mahan's hands, or his hands slipped from the rod, and that none of the men's feet slipped or stumbled in any way."

The negligence relied upon by plaintiff follows:

"In that the defendants' agent and employee Murphy, who was assisting the plaintiff in lifting one end of the connecting side rod, negligently and carelessly, and without notice or warning, released his hold on said rod, which they were loading, and caused the entire weight of the connection side rod to be put upon the plaintiff.

"In that defendants, their agents, servants, and employees, and in particular one Murphy, engaged with plaintiff in lifting the heavy said connection side rod, failed to abide by the well-known and long-established custom, and failed to warn plaintiff that he was going to turn loose of his side of the heavy rod."

The jury believed, or pretended to believe, the testimony of plaintiff, and, under the court's instructions, returned a verdict for $ 10,000. Judgment accordingly and defendants appealed.

Defendants contend for a directed verdict at the close of all the evidence. The question is here for review. Of course, this question must be determined on plaintiff's theory of the facts.

We agree with the plaintiff that in ruling the question we should consider the testimony of Murphy, Mahan and Shirley, above set forth, with the testimony of the plaintiff that he was looking at Murphy at the time, and that Murphy "just deliberately turned it loose."

We also agree with the plaintiff that said testimony of Murphy, Mahan and Shirley, considered with the testimony of plaintiff that Murphy "just deliberately turned it loose," shows that Murphy deliberately and intentionally dropped the rod.

If Murphy deliberately and intentionally dropped the rod in the course of his employment and in furtherance of the work of the employer's business, his conduct in doing so was negligence within the meaning of the Federal Employers' Liability Act. The rule is stated as follows:

"'Negligence' is a word of broad significance and may not readily be defined with accuracy. Courts usually refrain from attempt comprehensively to state its meaning. While liability arises when one suffers injury as the result of any breach of duty...