Weber v. Terminal R. Ass'n

• Decision Date: 08 October 1929
• Docket Number: No. 20755.,20755.
• Parties: WEBER v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

20 S.W.2d 601

WEBER v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 20755.

St. Louis Court of Appeals. Missouri.

October 8, 1929.

Rehearing Denied October 23, 1929.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Ruby Weber, as administratrix of the estate of Otto Buzan, deceased, against the Terminal Railroad Association of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

J. L. Howell and Samuel H. Liberman, both of St. Louis, for appellant.

Mark D. Eagleton and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment for $7,500 in favor of the plaintiff for the death of her intestate due to the alleged negligence of the defendant.

The only errors assigned in this court are that the second count of the amended petition fails to state facts sufficient to constitute a cause of action, and, second, that the court erred in refusing, at the close of the entire case, to direct a verdict in favor of the defendant on the second count of the amended petition.

So much of the second count of the amended petition as is necessary for the consideration of the first error assigned is as follows: "* * * that on or about August 24, 1925, said Otto Buzan was in the employ of defendant and was engaged in his duties as such for defendant in the city of St. Louis, Missouri, on a certain scaffold, owned, used and furnished by defendant for the painting and repairing of a station building of defendant in St. Louis, Missouri, used in the operation of said railroad in interstate commerce, and that said Otto Buzan and defendant were then and there engaged in railroad common-carrier interstate commerce; that said scaffold was not well and safely supported, nor of sufficient width, nor so secured as to insure the safety of persons working thereon; that said scaffold was swung from and supported merely by ropes, and very narrow, to-wit, only about twelve or eighteen inches wide, and there were no railings or devices to enable persons thereon to maintain their balance or prevent falling therefrom, and that gas and smoke there from railroad engines affected the eyes and breathing of persons on said scaffold; that said Otto Buzan was caused to fall from said scaffold and was injured, directly causing his death on said day, all of which directly and proximately resulted from negligence and carelessness of defendant."

To this count of the amended petition the defendant pleaded a general denial and that whatever injuries the deceased received were the result of the risks, hazards, and dangers usual and incident to the work in which he was engaged, all of which were known to him, or were so open and obvious as to be known, realized, and appreciated by him, and all of which were assumed by him. The reply was a general denial.

This petition of the plaintiff was not attacked in any way by motion or demurrer.

The defendant rests its first contention that the petition fails to state facts sufficient to constitute a cause of action upon the decision in Gurley v. Mo. Pac. R. R. Co., 93 Mo. 445, 6 S. W. 218. An examination of that case, however, discloses that the case went off on a lack of proof as to the negligence alleged, for the court says at page 449, at page 219 of 6 S. W.: "There is not a particle of proof of this alleged act of negligence." Gannon v. Gas Co., 145 Mo. loc. cit. 514, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505; Taylor v. Railroad, 185 Mo. loc. cit. 254, 84 S. W. 873.

Section 1550, R. S. Mo. 1919, provides that, after verdict, "the judgment thereon shall not be stayed, * * * reversed, impaired or in any way affected by reason of the following imperfections, omissions, defects, matters or things, * * * for the want of any allegation or averment on account of which omission a demurrer could have been maintained * * *" or, "for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict."

In Winn v. Railroad, 245 Mo. loc. cit. 412, 151 S. W. 98, 99, the court says that, in view of the failure to demur and the statutory provision above referred to, an objection, such as is being considered here, comes too late; that, "in the circumstances, appellant cannot now complain of a defective statement of the cause of action."

And in the case of McQuade v. Suburban Ry. Co., 200 Mo. 150, 156, 98 S. W. 552, in which it was claimed that the alleged grounds of negligence were repugnant, it was held that a mere defect in the petition could not be reached by a demurrer to the evidence, and that it could only be reached by a demurrer to the petition or a motion to elect.

In the case of White v. Railroad, 202 Mo. 539, 561, 101 S. W. 14, 21, the court says that "in the philosophy of the science of pleading, faults in a petition are waived (barring the two cardinal ones of stating no cause of action and lack of jurisdiction) whenever in the evolution of a law suit the case once advances to the stage of joinder of issue on the facts as pleaded."

In the case of Kern v. United Rys. Co., 214 Mo. App. 232, 259 S. W. 821, 823, the court says, the fair way to challenge the sufficiency of a petition is by demurrer in the beginning, so that, if it is adjudged insufficient, and is susceptible of amendment, the fault may be corrected. If a party lies in wait for his adversary the court should not allow him an advantage that he could not have attained in the open field.

To the same effect are the cases of State ex inf. v. Arkansas Lbr. Co., 260 Mo. 212, 282, 283, 169 S. W. 145; Swift v. St. Louis-San Francisco Ry. Co. (Mo. App.) 15 S.W.(2d) loc. cit. 967; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.(2d) 893; State ex rel. Brancato v. Trimble (Mo.) 18 S.W.(2d) 4.

But, the defendant says, the petition does not state any facts constituting negligence. In view of what we have said regarding the failure to attack the petition before answer and trial, we think the petition must be construed as sufficient in its allegations to support the action. It enumerates the several alleged defects and that the deceased fell from the scaffold, and then it connects up such defects with the averment of negligence on defendant's part, thus clearly implying that the carelessness of defendant which caused this fall and death consisted of the pleaded defects in the scaffold.

In the case of Bennett v. Metropolitan Street Ry. Co. (Mo. App.) 180 S. W. 1050, 1052, the opinion recites that the petition alleged the plaintiff was a passenger on a car of the defendant, and that at a certain point "she was thrown from said car by the negligence of defendant, resulting in her injury." Defendant objected to the introduction of any evidence on the ground that the petition failed to state a cause of action, but the court held that, having failed to attack the petition otherwise than by the objection mentioned, that in such circumstances the petition will be liberally construed, and, "generality in a charge of negligence is not a fatal objection to it after answer."

In the case of Quinley v. Springfield Traction Co., 180 Mo. App. 287, 298, 165 S. W. 346, complaint was made of the petition because it merely alleged that the motorman failed and neglected to take the necessary steps to avert the collision and did not charge that the acts which were done were negligently and carelessly done. The court held, however, that such criticism was refuted by the language used in the petition; that "plaintiff says that by reason of the negligence and carelessness of the defendant * * * in charge of the car as aforesaid" could refer only to the acts and omissions of the defendant and its servants thereinbefore set out, and therefore it was sufficient; that in any event, the defect, not being fatal, could not be questioned after judgment.

The parties have devoted much of the discussion in the briefs to the question whether or not our scaffold statute (section 6802, R. S. Mo. 1919) is applicable in the situation here present; but in the view we have expressed concerning the sufficiency of the petition it is unnecessary to consider the effect of the statute. The Federal Employers' Liability Act (45 USCA §§ 51-59) limits the liability of the employer to...