Wair v. American Car & Foundry Co., No. 20102.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBennick
Citation300 S.W. 1048
PartiesWAIR v. AMERICAN CAR & FOUNDRY CO.
Decision Date10 January 1928
Docket NumberNo. 20102.
300 S.W. 1048
WAIR
v.
AMERICAN CAR & FOUNDRY CO.
No. 20102.
St. Louis Court of Appeals, Missouri.
January 10, 1928.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Eddie Wair, an infant, by Della Wair, his next friend, against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

[300 S.W. 1049]

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

Mark D. Eagleton, Everett J. Hullverson, and Leo Lyng, all of St. Louis, for respondent.

BENNICK, C.


This is an action for damages for personal injuries, sustained on April 8, 1923, by plaintiff, an employee of defendant, while he was engaged with three coworkers in carrying an axle in defendant's plant. The case was before us on a prior appeal, resulting in the reversal of a judgment for plaintiff, and a remanding of the cause (285 S. W. 155), on account of prejudicial remarks made by the trial judge during the cross-examination of one of plaintiff's witnesses. Upon the second trial the verdict was again for plaintiff, and in the sum of $2,000; and from the judgment rendered thereon defendant, after an unavailing motion for a new trial, has duly perfected this appeal.

The negligence pleaded and submitted to the jury was the act of defendant in providing tongs for use in carrying the axles which were dangerous, and not reasonably safe, in that the same were too large to enable the axle to be gripped securely, so as to prevent it from slipping out of the tongs, and falling and striking the plaintiff.

The answer was a general denial, coupled with a plea of contributory negligence, to the effect that plaintiff had voluntarily chosen tongs which were too large for the purpose for which they were to be used, when tongs of the proper size were available to him. The reply was in conventional form.

The evidence upon the second trial was substantially the same as that at the first hearing, and for a more complete statement of the facts reference should be made to our former opinion. It should be repeated, however, that the axle which plaintiff and his three colaborers were carrying weighed about 250 pounds, and was required to be placed upon the top of a stack about 3 feet in height. Three pairs of tongs were furnished by defendant for use in the work, only one of which, however, was of a size to permit the axle to be gripped securely. Upon the occasion in question, this pair had been taken by the two men who were holding the rear end of the axle, thus forcing plaintiff and his partner, who were at the front end, to use a larger pair, the circumference of which was approximately one inch greater than that of the axle. While the men were attempting to place the axle upon the top of the pile, the tongs to which plaintiff was holding slipped off of the end of the axle, permitting it to fall and strike his right foot, producing the injuries on account of which this action was brought.

Earlier in the day plaintiff had endeavored to procure a second pair of the smaller tongs, but had been not only assured by his foreman that the larger tongs were proper for the use to which they were to be put, but also ordered by him to return to his work and use them.

Notwithstanding the fact that on the prior appeal we held that a case had been made for the jury upon the issue of defendant's negligence in furnishing plaintiff with tongs which were too wide for the purpose for which they were to be used, and were not reasonably safe, defendant now advances the argument that the demurrer to the evidence should have been sustained, on the ground that the proximate cause of plaintiff's injury was the negligence of his fellow servants, a proposition not argued on the first appeal, and hence not expressly covered in our former opinion.

There can be no doubt that ordinarily, on a second appeal, the decision in the former appeal constitutes the law in the case upon all points decided therein, where, as is true here, there was no amendment to the pleadings so as to...

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6 practice notes
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...Sacks, Inc., 76 S.W. (2d) 460, l.c. 468; Blaco v. Kansas City, Missouri, 56 S.W. (2d) 1062, l.c. 1065; Wair v. Amer. Car and Foundry Co., 300 S.W. 1048, l.c. 1050; Meyers v. Atlas Portland Cement Company, 260 S.W. 778, l.c. 780; Brewer v. Mo. Pac. R. Co., 259 S.W. 825, l.c. 827-828. (4) The......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...of passion and prejudice. Cunningham v. Kansas City, 225 Mo. App. 1063, 38 S.W. (2d) 734; Wair v. American Car & Foundry Co. (Mo. App.), 300 S.W. 1048. John F. Thice, Clay C. Rogers and Price Wickersham for appellant City of (1) The trial court erred in overruling defendant's motion to stri......
  • Lober v. Kansas City, No. 34710.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1936
    ...S.W. 187; Smiley v. Kinney (Mo.), 262 S.W. 349; Bradley v. Becker (Mo.), 11 S.W. (2d) 8; Wair v. American Car & Foundry Co. (Mo. App.), 300 S.W. 1048; T.J. Moss Tie Co. v. Stamp (Mo. App.), 25 S.W. (2d) "This general rule is subject to the limitation, however, that the former decision may b......
  • Raleigh v. Raleigh, No. 20167.
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1928
    ...court will not interfere. Irons v. American Railway Express Co. (Mo. Sup.) 300 S. W. 283; Wair v. American Car & Foundry Co. (Mo. App.) 300 S. W. 1048; Allen v. Autenrieth (Mo. App.) 280 S. W. 79; Plannett v. McFall (Mo. App.) 284 S. W. 850. In the particular instance under consideration, i......
  • Request a trial to view additional results
6 cases
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...Sacks, Inc., 76 S.W. (2d) 460, l.c. 468; Blaco v. Kansas City, Missouri, 56 S.W. (2d) 1062, l.c. 1065; Wair v. Amer. Car and Foundry Co., 300 S.W. 1048, l.c. 1050; Meyers v. Atlas Portland Cement Company, 260 S.W. 778, l.c. 780; Brewer v. Mo. Pac. R. Co., 259 S.W. 825, l.c. 827-828. (4) The......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...passion and prejudice. Cunningham v. Kansas City, 225 Mo. App. 1063, 38 S.W. (2d) 734; Wair v. American Car & Foundry Co. (Mo. App.), 300 S.W. 1048. John F. Thice, Clay C. Rogers and Price Wickersham for appellant City of (1) The trial court erred in overruling defendant's motion to str......
  • Lober v. Kansas City, No. 34710.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1936
    ...187; Smiley v. Kinney (Mo.), 262 S.W. 349; Bradley v. Becker (Mo.), 11 S.W. (2d) 8; Wair v. American Car & Foundry Co. (Mo. App.), 300 S.W. 1048; T.J. Moss Tie Co. v. Stamp (Mo. App.), 25 S.W. (2d) "This general rule is subject to the limitation, however, that the former decision m......
  • Raleigh v. Raleigh, No. 20167.
    • United States
    • Court of Appeal of Missouri (US)
    • May 1, 1928
    ...will not interfere. Irons v. American Railway Express Co. (Mo. Sup.) 300 S. W. 283; Wair v. American Car & Foundry Co. (Mo. App.) 300 S. W. 1048; Allen v. Autenrieth (Mo. App.) 280 S. W. 79; Plannett v. McFall (Mo. App.) 284 S. W. 850. In the particular instance under consideration, it ......
  • Request a trial to view additional results

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