Wair v. American Car & Foundry Co.

• Decision Date: 10 January 1928
• Docket Number: No. 20102.,20102.
• Citation: 300 S.W. 1048
• Court: Missouri Court of Appeals
• Parties: WAIR v. AMERICAN CAR & FOUNDRY CO.

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.

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 introduce new issues, and the evidence on retrial was substantially the same. Davidson v. St. Louis-S. F. Ry. Co., 301 Mo. 79, 256 S. W. 169; Benton v. City of St. Louis, 248 Mo. 98, 154 S. W. 473; Armor v. Frey, 253 Mo. 447, 161 S. W. 829; Smiley v. Kinney (Mo. Sup.) 262 S. W. 349; Coleman v. Northwestern Mutual Life Insurance Co. (Mo. Sup.) 233 S. W. 187.

However, it has been well said that, even if there was no substantial difference in pleadings and proof upon the retrial, yet, if the appellate court upon the second appeal should find that it had fallen into error upon the first hearing, not only would it have the power, but it would be its duty, in the interest of justice, to correct such error. Davidson v. St. Louis-S. F. Ry. Co., supra; Mangold v. Bacon, 237 Mo. 496, 141 S. W. 650; Murphy v. Barron, 286 Mo. 390, 228 S. W. 492.

Upon the issue of defendant's negligence in the respect alleged and submitted, we adhere to the conclusions reached in our first opinion. As to the new contention—that the proximate cause of plaintiff's injury was the negligence of his fellow servants—we observe that it is based upon certain testimony of plaintiff that, in attempting to place the axle upon the stack, he and his partner lifted the front end higher than the rear end, thus permitting the axle to slip out of the large pair of tongs, whereas, if the axle had been kept level, it could not have fallen out of the tongs, even though they were too large to enable the axle to be gripped securely. In other words, the argument is that the failure on the part of plaintiff's fellow workmen to co-ordinate their efforts properly constituted a new cause which broke the natural and continuous sequence of events, and thereby became the proximate cause of the injury regardless of whether it was...