Stewart v. Railway Co.

• Decision Date: 04 September 1930
• Docket Number: No. 28982.,28982.
• Citation: 30 S.W.2d 1000
• Parties: GEORGE R. STEWART, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.
• Court: Missouri Supreme Court

30 S.W.2d 1000

GEORGE R. STEWART, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.

No. 28982.

Supreme Court of Missouri. Division One.

September 4, 1930.

Appeal from Dade Circuit Court. — Hon. B.G. Thurman, Judge.

AFFIRMED.

Neale & Newman for appellant.

The court erred in sustaining the demurrer to plaintiff's petition. Myers v. City of Independence, 189 S.W. 816; Taul v. Saddlery Co., 299 S.W. 420; Blanton v. Dold, 109 Mo. 74; Sackewitz v. Biscuit Co., 78 Mo. App. 151; Stoher v. Ry. Co., 91 Mo. 514; Lee v. Ry. Co., 121 Mo. App. 406; Daugherty v. Mining Co., 207 S.W. 253; Eckhardt v. Electrical Co., 235 S.W. 117; Johnson v. Street Ry. Co., 104 Mo. App. 592; Propulonris v. Construction Co., 213 S.W. 792; Kneemiller v. Am. Car & Foundry Co., 291 S.W. 506; Ferguson v. Fulton Iron Works, 259 S.W. 811; Miller v. Walsh etc., 282 S.W. 141; Stroud v. Cold Storage Co., 285 S.W. 165; Kenyon v. St. Joe Ry. etc., 298 S.W. 246.

E.T. Miller and Mann & Mann for respondent.

Appellant's petition contains no specific allegation of negligence and is based entirely on the res ipsa loquitur doctrine. In fact, appellant's brief in this case admits that he is relying entirely on the res ipsa loquitur doctrine. The res ipsa loquitur doctrine does not apply to the allegations in the petition in this case and respondent's demurrer to the petition was properly sustained. Russell v. Railway Co., 245 S.W. 590; Mayne v. Railway Co., 287 Mo. 235; Beebe v. Transit Co., 206 Mo. 419; Breen v. Cooperage Company, 50 Mo. App. 202; Klebe v. Distilling Co., 207 Mo. 489; Bowen v. Railroad, 95 Mo. 268; Oglesby v. Railroad, 177 Mo. 272; Patton v. Railroad, 179 U.S. 658; Railroad v. Barrett, 166 U.S. 617; Shandrew v. Railroad, 142 Fed. 320; Cothron v. Packing Co., 98 Mo. App. 343; Callahan v. Warne, 40 Mo. 136; Fuchs v. St. Louis, 167 Mo. 620; Moyers v. Railroad, 171 Mo. App. 286; Newlin v. Railroad, 222 Mo. 375; Jones v. Railway, 135 Mo. App. 468; Maynard v. Railroad, 155 Mo. App. 352; White v. Railway, 156 Mo. App. 563.

LINDSAY, C.

The trial court sustained defendant's demurrer to plaintiff's amended petition. Plaintiff refused to plead further, and appealed from the judgment entered upon the demurrer.

The sufficiency of the petition to state a cause of action is the sole question in the appeal. The petition is as follows:

"Plaintiff for his cause of action against the defendant and for his second amended petition herein alleges that the defendant is and was at all times hereinafter mentioned a railroad corporation organized and existing under and by virtue of the laws of the State of Missouri, with a line of railway extending in and through the counties of Dade, Greene, and various other counties in Missouri and in and through other states than Missouri.

"That the defendant at all times hereinafter mentioned owned and operated certain car shops at Springfield, Greene County, Missouri, in which car shops the plaintiff was at all times hereinafter mentioned employed as a steel worker; that while so employed at said place, on or about the ____ day of August, 1925, plaintiff was ordered by defendant's foreman in charge of the work which plaintiff was then and there doing and under whom plaintiff was then and there working, to drill certain holes at the upper part of the end of one of defendant's box cars, by the use of a pneumatic air drill, which drill is operated by the use of compressed air.

"That it was the duty of the defendant to furnish plaintiff with good and reasonably safe and sufficient tools or machinery for that purpose, and to see that the tools or machinery so furnished to plaintiff for such work were in reasonably safe condition; but that the defendant furnished to the plaintiff a certain pneumatic air drill which is constructed of iron and steel and heavy metal parts including a certain motor composed, as plaintiff is informed and verily believes, of cylinders, pistons, shafts, rods, and of various other parts which plaintiff is unable to more accurately describe, connecting the said cylinders, pistons, shafts and rods with certain bits and with a compressed air tube and tank, which machinery operates the said bits in a rotary or boring manner; that the said pneumatic drill is controlled and operated by a certain hand throttle which throws it in and out of gear, thereby connecting the power of the said compressed air to the said bits; that the said drill contains and is operated by highly compressed air which exerts great force upon said bits, and which if unrestrained would escape with a great and dangerous force.

"Plaintiff further says that he was not and is not acquainted with the mechanical construction of said drill and does not know or understand the exact manner of its operation, nor the exact manner in which the said compressed air is restrained and held in check, and that after due diligence and inquiry he has been unable to ascertain such facts; that although he has since requested defendant for permission to inspect said drill defendant has failed to submit the same to plaintiff for inspection; that on or about the ____ day of August, 1925, the said compressed air drill was in the complete control of the said defendant, its agents, servants and employees, and that the defendant then and there and now has within its personal knowledge all the parts and workings of the said machinery. Plaintiff further states that on or about the ____ day of August, 1925, while he was engaged in operating the said drill and while he was using due care and caution for his own safety and was operating said drill in a normal and proper manner, the said air suddenly and without warning exploded and escaped therefrom and blew into plaintiff's right eye with great force and violence, carrying with it certain parts of dirt and steel, thereby seriously and permanently injuring said eye.

"Plaintiff further states that his duties connected with said machinery were merely the duties of an operator; that he did not have charge of the care and keep of the said machine, and is ignorant of the details of the construction of the said machine, and has no knowledge or means of knowledge of the cause or causes that operated to bring about the said extraordinary action of said machine in permitting the said air to explode and escape as aforesaid; that said information is entirely in the possession of the defendant and of the defendant's agents, servants and employees in charge of the upkeep of the said machine, and that the said explosion and escape of air, as aforesaid, in the manner hereinbefore described, was directly due and directly caused by negligence on the part of the defendant.

"Plaintiff further alleges that as a direct result of the injury to his eye, as aforesaid, he has suffered great physical pain and mental anguish; that the vision of his eye has been permanently impaired and practically destroyed; that he has expended sums of money for medical attention and in the future will be forced to spend sums of money for further medical attention.

"Plaintiff further says that his injuries aforesaid were the direct and proximate result of the negligence and carelessness of the defendant, its agents, servants, and employees, as aforesaid, in furnishing plaintiff the tools with which to work, as aforesaid.

"Wherefore, plaintiff says that by reason of the premises aforesaid he has been damaged in the sum of nine thousand nine hundred and seventy-five dollars, for which sum together with his costs he prays judgment."

Counsel for appellant say the petition is bottomed squarely on the rule res ipsa loquitur. The sole question for decision as the case is presented by counsel for both parties is whether the petition states sufficient facts to constitute a cause of action under that rule. Taking the allegations as true, and taking the pertinent parts of the petition, they charge that plaintiff was a steel worker; that he was ordered by defendant's foreman to drill holes in the end of a box car; that for that purpose he was furnished a drill operated by highly compressed air, coming from a tank, through a tube connected with various mentioned parts not definitely described, and operating finally upon a bit, causing the bit to rotate; that the air was dangerous if permitted to escape in an unrestrained way; that the upkeep and care of the machine was in charge of defendant, and plaintiff's only duty was to operate it; that it was set in operation or thrown out of gear, by use of a hand throttle; that while plaintiff was operating the machine in a "normal and proper manner" and in the exercise of due care for his own safety, the air suddenly exploded and escaped with great violence and in such manner as to cause particles of dirt and steel to be blown into plaintiff's eye. The allegation is that such explosion and escape of air was directly caused by negligence on the part of defendant; then, after description of the alleged injuries, there is the allegation that said injuries were the direct and proximate result of negligence of defendant, its agents and employees, in furnishing plaintiff with the aforesaid tools with which to work; but there is no allegation that the particular drill furnished was defective, or was of a pattern not in general use for the purpose mentioned. Plaintiff disclaims knowledge of the mechanical construction of the drill, the exact manner of its operation, and of the exact manner in which the compressed air is restrained and held in check; avers he has been unable to ascertain such facts, that permission to inspect the drill was denied by defendant; that the information as to the cause that operated to bring about the extraordinary action of the machine in permitting the air to explode and escape, is entirely in the possession of defendant.

Taking another view of the petition, we find it charges that it was the duty of the defendant to furnish plaintiff with good and reasonably safe and sufficient tools and...