Wainright v. Missouri Lumber & Mining Company
| Decision Date | 08 May 1911 |
| Citation | 137 S.W. 53,156 Mo.App. 512 |
| Parties | JOHN P. WAINRIGHT, Respondent, v. MISSOURI LUMBER & MINING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.
Judgment reversed and cause remanded.
Lamar & Lamar, L. B. Shuck, W. J. Orr and J. H. Orr for appellant.
(1) The petition alleges specific acts of negligence and it was error to instruct on other acts not pleaded. Gilber v Railroad, 128 S.W. 791; McNamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 514; McGrath v. Transit Co., 94 S.W. 872; Evans v Railroad, 121 S.W. 36; Anderson v. Railroad, 130 S.W. 82; Christian v. Ins. Co., 143 Mo. 469. (2) The court erred in refusing to direct a verdict for the defendant at the close of the evidence on part of plaintiff and again at the close of all the evidence. Jackson v Mining Co., 132 S.W. 306; Heinz v. Boiler Works Co., 132 S.W. 310; Anderson v. Railroad, 130 S.W. 82. (3) There was no casual connection between the things complained of and the accident. See the following cases illustrating this point, many of which are stronger on the facts for the plaintiff than the case at bar. Foley v. McMahan, 114 Mo. 442; King v. Railroad, 211 Mo. 1; Coin v. Lounge Co., 121 S.W. 1; St. Clair v. Railroad, 34 S.W. 76; Evans v. Railroad, 17 Mo.App. 624; Lowery v. Railroad, 40 Mo.App. 554; Grattis v. Railroad, 153 Mo. 389; McGrath v. Railroad, 197 Mo. 97; Warner v. Railroad, 178 Mo. 133; Hodges v. Railroad, 116 S.W. 1131; Bradley v. Railroad, 64 Mo.App. 475; Lawrence v. Ice Co., 119 Mo.App. 328; Jackson v. Railroad, 157 Mo. 621; Railroad v. Tritts, 108 S.W. 841; Quisenberry v. Railroad, 126 S.W. 182.
Orchard & Cunningham and Dooley, Hiett and Millard for respondent.
(1) It is firmly settled that the intervention of a third person or of other and new causes does not preclude a recovery, if the injury was the natural and probable result of the original wrong. Billman v. Railroad, 76 Ind. 168; Railroad v. Krinning, 87 Ind. 355. (2) Everything which induces or influences an accident does not necessarily and legally cause it, there can be no fixed rule defining a proximate cause, much must depend upon each cause. Spaulding v. Winslow, 74 Mo. 535; Jucker v. Railroad, 52 Wis. 153; 1 Joyce on Damages, sec. 86. (3) The rule is that negligence is not imputable to a person for failing to look out for a danger, when under the surrounding circumstances the person sought to be charged with it had no reason to suspect that danger was to be apprehended. Langon v. Railroad, 72 Mo. 398. (4) Appellant and respondent tried the case on the same theory. The rule is that when that is the case appellant must stand or fall by the theory on which he tried and submitted his case to the trial court, and cannot raise issues not raised in the court below. Walker v. Owen, 79 Mo. 567; Black v. Railroad, 172 Mo. 196; Land Co. v. Zeitler, 182 Mo. 265; St. Louis v. Glover, 210 Mo. 502. (5) It is the duty of the employer not only to furnish the employee a reasonably safe place to work, but to see that such place is kept in that condition. Zellars v. Water & Light Co., 92 Mo.App. 117; Doyle v. Trust Co., 140 Mo. 15; Koerner v. Car Co., 200 Mo. 158. (6) When the foreman in charge of hands on a railroad ordered an employee to do an act at a time and under circumstances which rendered the doing of the act extra hazardous, the company was liable unless to obey the order was plainly to imperil life. Stephens v. Railroad, 86 Mo. 229; 96 Mo. 221; Doyle v. Trust Co., 140 Mo. 19; Hester v. Packing Co., 95 Mo.App. 23; Adams v. Harvester Co., 95 Mo.App. 118; Buckner v. Horse & Mule Co., 221 Mo. 710. (7) Before the court can declare as a matter of law that a servant was guilty of contributory negligence, precluding a recovery for injuries sustained while performing work in obedience to the express orders of his master, the court must hold, that when the master ordered the servant to do the work, the latter must have known that to do so would probably be attended with injury to himself, and that he could not avoid it by the exercise of due care; that such danger was so obvious that no man of ordinary prudence would have attempted it, but would have abandoned the service of the master rather than undertake the manner of the work. Halliburton v. Railroad, 58 Mo.App. 33; Monnahan v. Clay & Coal Co., 58 Mo.App. 73; Lucey v. Oil Co., 129 Mo. 40; Robinson v. Railroad, 133 Mo.App. 120; Burkard v. Rope Co., 217 Mo. 479.
This action was instituted in Shannon county by the respondent, to recover damages for personal injuries received by him while in the employ of the appellant. The cause was tried in Texas county, where it had been taken on change of venue, resulting in a judgment for the plaintiff for $ 1500, from which the defendant appealed.
On the 17th day of December, 1909, plaintiff was in the employ of the defendant as a common laborer at West Eminence. On that day it became necessary to take a mud drum to the machine shop of the defendant, to have it repaired. The drum was about twenty-eight feet long; about two feet through, and six feet in circumference; was round, hollow, and weighed about 3000 pounds. At the time one Neislar was the foreman of the appellant in charge of said work. The foreman called upon the plaintiff and other common laborers, to load the drum on a wagon to be taken to the machine shop. The drum was loaded on the wagon and was not wide enough to fill the space between the standards, and no braces or stays were placed between the sides of the drum and the standards. After the drum was loaded, Neislar ordered three or four of the men to get on the wagon and steady it.
The plaintiff further claims that at the time the drum was loaded, he called the foreman's attention to the fact that it was dangerous to try to move it without fastening the front down with a chain; that the foreman replied: "Get on, there is no danger," and further stated to plaintiff that there were just fifteen minutes to get the drum to the shop, and he would have the other hands follow and steady the drum from the rear.
The evidence further shows that the plaintiff and two others got on the front end of the wagon to steady or hold the drum and after the wagon had gone about one hundred yards, the front wheel dropped into a rut or depression in the road, and the drum rolled to one side and thereby the plaintiff and the other persons riding on it were thrown to the ground, and plaintiff's leg was broken by the wheel of the wagon running over it.
The petition alleges: "Said mud drum was so carelessly and negligently loaded on said wagon as to permit it to roll from side to side between the standards of the wagon, and that no braces or stays were placed on either side of the mud drum and the standards of said wagon to keep it from rolling from side to side; that no binding chains or other fastenings were attached to the front end of said mud drum to fasten it and secure the front end of same to the front axle to prevent tilting up and rolling over; that there were horses attached to the wagon on which the mud drum was loaded to pull said wagon and mud drum to the machine shops; that after said mud drum was loaded onto said wagon as aforesaid, the defendant's vice principal ordered this plaintiff and two other employees to get on the front end of the said mud drum and ride it to keep it from tilting up; that this plaintiff protested and told the defendant's vice principal and agent that the mud drum was not properly loaded and he did not want to ride the same, but that the agent and vice principal of defendant told plaintiff that there was no danger, and that there was no time to lose, and that he would have the other employees get behind and steady said mud drum and keep it from tilting and rolling, and plaintiff relying on the statements, representations and assurances of the said vice principal, got on the front end of said mud drum, together with the two other employees of defendant to keep it from tilting up or rolling; that after plaintiff and the two other employees got on said mud drum to ride the same for the purposes aforesaid, the team was started up, and after getting a distance of about one hundred and fifty yards, said mud drum being so negligently, carelessly and improperly loaded, rolled to one side turning about one-third the way over, thereby throwing this plaintiff and other employees off of the said drum."
The answer was a general denial, a plea of contributory negligence, and assumed risk.
The appellant's first assignment of error is that the court should have sustained a demurrer to plaintiff's testimony. "It is elementary law in this state that a demurrer admits every fact to be true which the evidence in the case tends to prove, whether by direct testimony or by reasonable deductions to be drawn therefrom." [Trout v. Laclede Gas Light Co., 132 S.W. 58.]
The plaintiff's evidence tends to prove that the heavy, round drum was placed on an ordinary wagon, and that it did not fill the space between the standards, and was not fastened in any manner. It is apparent, and a matter within the common knowledge of every person, that such an object was likely to roll or shift from side to side, if the wagon wheels passed over an obstruction, or dropped into a rut. And it is equally apparent that parties riding on the drum and holding to the front end of it, were liable to be thrown or rolled off, if the drum rolled. On the other hand, such a drum might ride on the wagon over...
To continue reading
Request your trial