Stone v. Missouri Pac. Ry. Co
| Decision Date | 11 April 1927 |
| Docket Number | 25477 |
| Citation | 293 S.W. 367 |
| Parties | STONE v. MISSOURI PAC. RY. CO |
| Court | Missouri Supreme Court |
James F. Green, of St. Louis, and Barbour, McDavid & Barbour of Springfield, for appellant.
C. W Hamlin, A. T. Parrish, and Hamlin, Hamlin & Hamlin, all of Springfield, for respondent.
Plaintiff obtained a verdict and judgment for $ 12,500 for injuries received in a fall from one of defendant's bridges where he was engaged in repair work, from which defendant has appealed.
The petition among other things alleges that on November 7, 1922, plaintiff was in defendant's employ as a common laborer assisting bridge carpenters in the repair of a bridge or trestle used by defendant in operating an interstate railroad; that in so doing he and other employees 'were under the supervision and direction of a foreman, who directed them how and what repairs to make on said trestle, and in so doing the said foreman directed this plaintiff and other employees to go to a point near the center of said trestle from the north to the south end and remove an upright timber or post, and in order so to do it was necessary for plaintiff to walk along and upon a 'longitude' on top of the first deck, and in order to carry out the instructions of his foreman, he started to walk along said 'longitude' and while so doing, and while using ordinary care and caution, a timber composing a part of said 'longitude' upon which he was walking, by reason of being rotten and decayed, on the edge or side, gave way and sluffed off, thereby causing plaintiff to fall with great force and violence to the ground and was injured as hereinafter stated.'
Defendant's negligence is alleged in said petition as follows: It was the defendant's duty 'to furnish plaintiff a reasonably safe place to work and perform his said duties, and well knowing the height, length, and general make-up of said trestle, and knowing that in repairing trestles it required the employees to climb upon and walk upon the timbers known as longitudes, it should have inspected all of said timbers at reasonable intervals, and if any upon inspection showed a defect, then mark or spot such timber in such a way that the employees would be apprised thereof; in fact, the particular timber from which plaintiff fell had been inspected and condemned by the defendant a long time prior to the date the plaintiff fell, which fact the defendant well knew but was unknown to plaintiff, and there was no way for plaintiff to have ascertained same by the use of ordinary care and caution, and the defendant failed in any way whatsoever to notify plaintiff of the defective condition of said timber; that the defendant could at a nominal expense have furnished plaintiff and his coemployees with ladders or scaffolds upon which they could stand and work while performing their labors on said trestle.'
Defendant's answer admits that it is a corporation, denies all other allegations in plaintiff's petition, and pleads contributory negligence and assumption of risk on the part of plaintiff.
Defendant requested an instruction in the nature of a demurrer to the evidence and for an instructed verdict at the close of plaintiff's evidence, and renewed the request at the close of the whole case, which request was both times denied.
The bridge or trestle in question, known as bridge No. 78, was a part of defendant's main line of railway extending through Crane, Mo., in a southeasterly direction to and through Cotter, Ark. It was mainly of Louisiana long leaf yellow pine construction, built about 1902, about 700 feet long, 30 feet wide at the base, and 70 or 80 feet high at the deepest part of the ravine it spanned. The life of such timbers exposed to the weather was shown to vary from 10 to 30 years. The bridge was built in upright sections or 'bents' 14 feet apart, and these in turn were braced and held together by longitudinal braces, each 28 feet long, running lengthwise in the bridge on three different levels or 'decks,' the first or lower deck (the third counting from the top) being about 20 feet above the ground, the 'longitudes' in each deck consisting of four 6 or 8 by 10 inch sawed timbers, one on each outer side of the bridge and two more between these, each longitude presenting a flat top variously shown to be 6 or 8 inches wide. The bents were numbered consecutively commencing at the north end of the bridge towards Crane. On the day plaintiff was injured the bridge force at that place consisted of a foreman and three other men besides plaintiff. In the forenoon they replaced an old intermediate post near the middle of the bridge with a new one, but did not get it bolted before the noon hour. They ate lunch on the dump at the north end of the bridge, and at 1 o'clock the foreman remarked that it was time to go to work and continued his conversation with two civil engineers while the four men working under him made their way back towards the middle of the bridge where they had been working for the purpose of putting the bolts in the post they had placed in the forenoon and to renew another post close by. Three of the workmen, Crab, Pritchard, and Monroe, walked south on a longitude in the second deck from the top towards their place of work near the center of the bridge.
Plaintiff testified that he was walking south on the second longitude from the west side of the bridge towards his place of work, and when he got near the middle of a longitude 'the longitudinal bursted out from under' his left foot and he fell to the ground. No one else saw him on the bridge or saw him fall, but the other three workmen heard him fall and they immediately climbed down off the bridge and found plaintiff lying unconscious on the ground between bents 27 and 28, bleeding at the nose and mouth and from a blow on the back of the head. He was immediately taken to Crane, thence removed to a hospital at Springfield, where he remained for 13 days, unconscious much of the time, then taken home for three weeks, and then taken to a hospital in St. Louis where he remained a month. His wife testified that 'his mind come and went'; sometimes he knew things and sometimes he did not. At the time he was injured plaintiff was 29 years old, in good health, making 46 cents an hour, and supporting his wife and child. The case was tried February 6, 1924. From the date of his injury up to that time he had been unable to do any work and was still suffering pain. The medical testimony was that he had partial paralysis in one side, suffered from an accelerated heart and muscular inco-ordination so that if he tried to feed himself he would miss his mouth, and he could not stand with his eyes closed; that his injuries would likely be permanent and might result in complete paralysis; that relief could only come through an operation, and even with an operation cure was not at all probable.
Appellant insists that the verdict is not supported by the evidence, and that the trial court erred in refusing defendant's request for an instruction in the nature of a demurrer to the evidence and for a directed verdict. We must bear in mind, however, that the case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which could be properly taken of the facts the evidence tended to establish. Texas & Pac. Ry. Co. v. Cox, 145 U.S. 593, loc. cit. 606, 12 S.Ct. 905, 36 L.Ed. 829.
The evidence is somewhat conflicting as to which deck plaintiff was walking on just before he fell. On this point he testified:
'I went down and went through on one of the longitudinals, the second from the ground, and started to walk out that way.'
The second longitudinal from the ground would be on the second deck, counting either from the top or the bottom. Counsel for appellant in their printed statement of the facts say:
However, this statement on the part of appellant is not borne out by the evidence. Witness Crabb testified:
Witness Monroe testified:
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