Tyon v. Wabash Railway Company
| Decision Date | 21 June 1921 |
| Parties | EMIL TYON, Respondent, v. WABASH RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
N. S Brown and Homer Hall for appellant.
(1) The instruction in the nature of a demurrer to the evidence ought to have been given for the reason that there was no evidence to establish negligence on the part of defendant in any of the particulars alleged in the petition, nor in any other particular under the circumstances shown in evidence. Near v. Railroad, 261 Mo. 80, 91, 97; Current v Railroad, 86 Mo. 62. (2) The plaintiff knew that the car had not been inspected by the defendant and therefore he could not rely upon defendant having exercised proper care for his safety, but on the contrary, he assumed the risk of using the handhold, as a matter of law, and the demurrer to the evidence should have been given. Pryor v. Williams, 254 U.S. 43; Chicago, R. I. & P. Ry. Co. v. Ward, 252 U.S. 18; Ches. & Ohio Ry. v. De Atley, 241 U.S. 310; Ches. & Ohio Ry. v. Proffitt, 241 U.S. 462; Thompson v. Railroad, 133 Minn. 203; affirmed, 242 U.S. 623. (3) The defendant was under no duty to inspect the defective car, as it was not in its service. It had the right to assume that the Chicago, Rock Island & Pacific Railway Company, which had the car in its service, would properly inspect the cars it placed on the switch, as was its duty to do. Plaintiff, therefore, has no right to recover against the defendant, and the court should have directed a verdict for it. Moynihan v. King's Windsor Cement & C. Co., 168 Mass. 450; Trask v. Old Colony Railroad, 156 Mass. 298; Coffee v. New York, N.H. & H. R. Co., 155 Mass. 21. (4) The testimony all showed that the defect was a hidden one, that the defendant had no notice of the defect or opportunity to discover it and therefore, it was not liable. Gutridge v. Railroad, 94 Mo. 468; 26 Cyc. 1109, 1110. (5) The fact that plaintiff is not entitled to recover against the defendant does not mean that he is without remedy against the owner of the car or the Chicago, Rock Island & Pacific Railway Company, which had the car in its service and placed it in a position to cause plaintiff's injury. Moynihan v. King's Windsor Cement, etc., Co., 168 Mass. 450; Engel v. New York, etc., Railroad, 160 Mass. 260. (6) The giving of plaintiff's instruction No. 1 was erroneous because it dircted the jury to find for plaintiff without requiring them to find that defendant was guilty of any of the specific negligence alleged in the petition. The plaintiff must recover, if at all, on the cause of action alleged in his petition. Current v. Railroad, 86 Mo. 62; Daniel v. Pryor, 227 S.W. 102; Bergfeld v. Kansas City Rys. Co., 227 S.W. 106; State ex rel. v. Ellison, 270 Mo. 654; Degonia v. Railroad, 224 Mo. 589; Lauff v. Carpet Co., 186 Mo.App. 135; Giles v. Railroad, 278 Mo. 350; Dority v. Railroad, 188 Mo.App. 365, 174 S.W. 209; Eliot v. Railroad, 204 Mo. 1; Tinkle v. Railroad, 212 Mo. 445; Houck v. Hunter, 225 S.W. 1027. Instructions must not be broader than the evidence, no matter how broad the petition, nor shall they be broader than the petition. Gunn v. Hemphill Lumber Co., 218 S.W. 987; Parker v. Drake, 220 S.W. 1000. (7) Plaintiff's instruction 1 is erroneous because it ignores the defense of assumption of risk which is pleaded in the answer and is a valid defense. Chicago, R. I. & P. Ry. Co., v. Ward, 252 U.S. 18; Daniel v. Pryor, 227 S.W. 102; Ches. & Ohio Ry. v. De Atley, 241 U.S. 310; Jacobs v. Southern R. R., 241 U.S. 229; McIntyre v. St. Louis & S. F. Ry. Co., 227 S.W. 1047; Pryor v. Williams, 254 U.S. 43. Plaintiff's instruction 1 is erroneous because it uses the term "ordinary care" without defining it. Foy v. United Rys. Co., 226 S.W. 325; Violette v. Mitchell, 203 S.W. 218; Montgomery v. Railroad, 181 Mo. 508; Turnbow v. Dunham, 272 Mo. 53. (9) Plaintiff's instruction 2 is erroneous because it authorized and directed the jury to allow plaintiff for loss of earnings which he had suffered, without any limitation whatever on the amount, when the petition claimed only $ 135 for lost wages. Carney v. United Rys. Co., 226 S.W. 308; Heidbrink v. United Rys. Co., 133 Mo.App. 40; Reynolds v. United Rys. Co., 142 Mo.App. 708; Tinkle v. Railroad, 212 Mo. 445; Smoot v. Kansas City, 194 Mo. 513; Smith v. Railroad, 183 Mo.App. 180; Smart v. Railroad, 164 Mo.App. 61. (10) The court erred in refusing to give defendant's requested instruction numbered 3, for if the facts therein submitted were found by the jury, then defendant was not liable under the authorities cited under paragraphs 1, 2, 3 and 4 of this brief. (11) The verdict is excessive and the motion for a new trial ought to have been sustained for that reason. Plaintiff had practically recovered from the injury to his wrist, received by falling from the car, when he received the injury to his arm and shoulder which caused the permanent injury for which the jury awarded damages. The verdict is also excessive because it evidently includes loss of earnings greatly in excess of the amount claimed in the petition. Neff v. Cameron, 213 Mo. 350; Wellman v. Ry. Co., 219 Mo. Mo. 126; Sexton v. Railroad, 245 Mo. 254; Johnson v. Brick Co., 205 S.W. 615; Brady v. Railroad, 206 Mo. 509; Gaty v. United Rys. Co., 227 S.W. 1041.
Edward W. Foristel for respondent.
O. J. Mudd, of counsel.
Appellant's bill of exceptions shows that appellant at the trial saved no exceptions to the decision of the court ruling on the giving or refusing of instructions, or overruling the motions for new trial and in arrest. There is nothing before this court, therefore, but the record proper. The petition states a cause of action, was supported by evidence, and the judgment is responsive to the pleadings. It should therefore be affirmed. 3 Corp. Jur., sec. 802, p. 895; Idem, sec. 843, p. 954; Elliot's Appellate Procedure, secs. 785 and 786; State v. Stevens, 242 Mo. 439; State v. Pfeifer, 267 Mo. 23; State v. Reed, 143 Mo.App. 583; Ross v. Railroad, 141 Mo. 390; Stauffer v. Railroad, 243 Mo. 305; Ross v. Grand Pants Co., 241 Mo. 296; Hubbard v. Gates, 228 Mo. 610; Building Co. v. Hopkins, 204 Mo. 652-3; Mexico v. Barnes, 158 Mo.App. 612; McKee v. Dry Goods Co., 152 Mo.App. 241; Waller v. Railroad, 83 Mo. 608; Fornof v. Williamsburg, 238 Pa. 614; R. R. v. Thompson, 82 F. 720. Nor does the act of the stenographer in noting an exception when none was really taken (although tolerated and assented to by the practice of the court), nor any rule or custom or practice of the court, dispensing with the taking and saving of an exception at the time of the ruling, satisfy the law, 3 Corp. Jur., sec. 802, p. 898; Green v. Terminal R. R. Asso., 211 Mo. 18; Burdoin v. Town of Trenton, 116 Mo. 358; Kansas City v. Oil Co., 140 Mo. 458; Howes v. Colburn, 165 Mass. 385; Moore v. Royal Oak Lumber Co., 171 Mich. 400; Herman v. Jeffries, 4 Mont. 513; Daniels v. Ins. Co., 2 Mont. 500; Briggs v. Waldron, 83 N.Y. 582; Greer v. Greer et al., 65 N.Y.S. (58 Hun.) 251; Edmonds v. Inman, 24 S.D. 457; Kennedy & Bro. v. Cunningham, 2 N.E. T. C. 538; Christian v. John, 2 Pa.Super. 78; Lampe v. Rwys. Co., 177 Mo.App. 652.
Daues, J., not sitting.
This is an action for personal injuries sustained by plaintiff while in the employ of the defendant railway company as a switchman. The petition alleges that the defendant is a common carrier engaged in interstate commerce, and that on September 3, 1916, plaintiff was in defendant's employ in the city of St. Louis, as a switchman, engaged in switching cars used by the defendant in interstate commerce, and that while performing his duties as such switchman he took hold of a handhold on the roof of a box car on which he was working, for the purpose of descending from the roof of the car, and that the handhold suddenly gave way, violently precipitating him to the ground, breaking the bones of his left arm at the wrist, bruising, contusing and lacerating him "about the arms, hands, face, head, legs and body," and causing injury to his nervous system. And it is alleged that the handhold was not bolted to the roof of the car, but was fastened thereto by means of lag screws which had been permitted to become old, worn and rusty, and that the roof thereabout was permitted to be in a rotten and decayed condition.
It is averred that plaintiff's injuries were caused by the carelessness and negligence of the defendant (1) in failing to have the handhold bolted to the roof of the car; (2) in failing to use reasonable care to provide plaintiff with a safe place on said car in which to work, in that defendant permitted said lag screws to be and remain in an old, worn and rusted condition, and permitted the roof thereabout to be and remain in a rotten and decayed condition, when defendant knew, or by the exercise of ordinary care could have known thereof in time to have repaired the same and to have averted the injury to plaintiff, and (3) in failing to give plaintiff timely warning of the conditions aforesaid, with respect to said lag screws and the roof thereabout and that the handhold was likely to give way and cause plaintiff to be injured.
And it is alleged that as the direct result of such injury plaintiff has suffered and will suffer great pain of body and mind "that he has lost the earnings of his labor as a switchman for a period of one and one-half months at the rate of $ 90 per month. amounting to $ 135, and that he will in the future suffer the loss of his earnings as such;" that his shoulder has been permanently weakened and his left wrist rendered...
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