Wilks v. St. Louis & San Francisco Railroad Company
| Decision Date | 06 November 1911 |
| Citation | 141 S.W. 910,159 Mo.App. 711 |
| Parties | CHARLES WILKS, by Next Friend, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled December 18, 1911.
Appeal from Lawrence Circuit Court.--Hon. Carr McNatt, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. F Evans and Mann, Johnson & Todd for appellant.
(1) The court erred in giving plaintiff's instruction number 1. Dowling v. Allen, 102 Mo. 213; Czernicke v Erlich, 212 Mo. 395; Zellars v. Light Co., 92 Mo.App. 119; Clark v. Railroad, 179 Mo. 66; Mueller v. Shoe Co., 109 Mo.App. 506; Brands v Car Co., 213 Mo. 714; Musick v. Packing Co., 58 Mo.App. 300; Hach v. Railroad, 117 Mo.App. 11; Clonts v. Light Co., 144 Mo.App. 582; Lee v. Railroad, 150 Mo.App. 175. (2) Said instruction number 1 is erroneous because it does not present to the jury the case pleaded and presented to the jury by the petition and the evidence. Unless it can be said as a matter of law the evidence disclosed knowledge on the part of defendant of the tendency of the bucket to suddenly turn and knowledge of the danger and increased hazard and knowledge of the youth and inexperience of the plaintiff. Hufft v. Railroad, 222 Mo. 304; Eppstein v. Railroad, 197 Mo. 734; Morgan v. Railroad, 159 Mo. 270; Ahnefeld v. Railroad, 212 Mo. 300. (3) Instructions must not only be within the scope of the pleadings but within the scope of the evidence. Block v. Railroad, 217 Mo. 672; Crumley v. Timber Co., 144 Mo.App. 528. (4) Said instruction number 1, is erroneous because it refers the jury to the petition for the injuries of the plaintiff for which they might compensate him, to quote the language of the instruction: "If you find from the evidence that plaintiff . . . was thereby thrown to the ground and received any of the injuries complained of." Fisher v. Transit Co., 198 Mo. 562; Pandjiris v. Hartman, 196 Mo. 539; Glasgow v. Railroad, 191 Mo. 374; Webb v. Carter, 121 Mo.App. 155; Allen v. Transit Co., 183 Mo. 432; Flischman v. Miller, 38 Mo.App. 181; Com. Co. v. Hunter, 91 Mo.App. 337. (5) The peremptory instruction offered at the conclusion of all the evidence by the defendant should have been given and in consequence this case should be reversed without remanding. Because the petition in failing to allege the defendant knew, or by the exercise of ordinary care could have known of the liability of the bucket or hopper to suddenly turn or revolve and injure plaintiff, or that it knew or could have known of the danger or increased hazard, the plaintiff failed absolutely to state a cause of action and the defect cannot be cured by the verdict. Mueller v. Shoe Co., 109 Mo.App. 507; Current v. Railroad, 86 Mo. 62; Crane v. Railroad, 87 Mo. 588; Johnson v. Railroad, 96 Mo. 340; Fisher v. Lead Co., 156 Mo. 479; Durst v. Stamping Co., 163 Mo. 607. (6) Because defendant was not required to have provided against all possibly anticipated happenings. Glasscock v. Dry Goods Co., 106 Mo.App. 657; Kapper v. Shoe Co., 116 Mo.App. 168; Brubaker v. Light Co., 130 Mo.App. 439; Saxton v. Railroad, 98 Mo.App. 494. (7) That the bucket under the circumstances after coming down straight would, when the plaintiff went to take hold of it, suddenly whirl and knock him down is contrary to the laws of physics and plaintiff's testimony that it did so happen should be disregarded. DeMalt v. Fidelity Co., 121 Mo.App. 92; Baker v. Railroad, 122 Mo. 589; Way v. Power Co., 68 Mo.App. 389; Gorman v. Transit Co., 96 Mo.App. 606; Payne v. Railroad, 136 Mo. 562; Latson v. Transit Co., 192 Mo. 449; State v. Vaughn, 200 Mo. 22. (8) The evidence is wholly insufficient to show that the defendant had reasonable cause to anticipate plaintiff's injury. This being the fact, there was no negligence on the part of defendant, and the demurrer should have been sustained. Halloran v. Pullman Co., 148 Mo.App. 247; Wendall v. Railroad, 100 Mo.App. 556; Anderson v. Box Co., 103 Mo.App. 382; Dickey v. Dickey, 111 Mo.App. 304; Cole v. Lead Co., 130 Mo.App. 253; Harris v. Railroad, 146 Mo.App. 524; Leitner v. Grien, 104 Mo.App. 173.
Sizer & Kemp for respondent.
(1) In this case respondent pleaded that he was given a defective and dangerous machinery and appliances and the turning of the bucket was only incident to the defective hoist, and as it was admitted throughout the trial that the hoist was defective, therefore, it was a useless ceremony to incorporate the same in the instructions. Cornovski v. Transit Co., 207 Mo. 274; Zellers v. Water Co., 92 Mo.App. 128. (2) When instructions are not inconsistent and where plaintiff's instructions omit certain requirements, yet when the instructions of defendant supply the defect appellant cannot complain. Gibler v. Railroad, 203 Mo. 222; Goetz v. Railroad, 50 Mo. 472; Chambers v. Chester, 172 Mo. 461. (3) Where the plaintiff is a minor, it is a prime duty to warn him and caution him especially where the youth is required to work with complicated machinery. Vanesler v. Box Co., 108 Mo.App. 629; Saller v. Shoe Co., 130 Mo.App. 729. (4) Not a single witness for defendant ever intimated that they were ignorant of his age or inexperience. Zellers v. Water Co., 92 Mo.App. 128; Crane v. Railroad, 87 Mo. 595. (5) Not only the age but the experience and capacity of the minor enters as a factor in the degree of care he is required to observe. The proposition of law as set forth in instruction No. 2 is correct as applied to this case. Thien v. Supply Co., 116 Mo. 5; Henderson v. Kansas City, 177 Mo. 490; Vessels v. Car Co., 129 Mo.App. 713.
Action for personal injuries, which respondent claims he sustained on the 23rd day of February, 1911, while in the employ of the defendant. The plaintiff was eighteen years of age on the 15th day of November, 1910. He commenced to work for the defendant on the 15th day of February, 1911. His duties were to assist another employee in coaling engines, and were performed at night. In coaling the engines a machine known as a Brown hoist was used. The hoist and the engine operating it were located on a flat car built for the purpose. The hoist was a common steam shovel. It had a boom or a long beam, and over this and down one end thereof, ran wire steel cables, and to the end of the steel cables was attached the bucket or scoop by which the coal was raised. Previous to the night plaintiff claims he was injured, the method of operating the hoist had been to use three parallel tracks. On the center track stood the hoist; on the track to one side stood the coal car from which the coal was to be taken, and on the track at the other side of the hoist, stood the engine, the tender of which was to be filled with coal. When a tender was to be filled, the operator started his engine, and by means of his machine, turned the boom so that it would first swing to the car of coal, carrying the bucket with it. At the same time with appliances at his hand, he unrolled the spool or windless carrying the steel cable, and thereby lowered the bucket into the car of coal. The long way of the bucket was longer than the width of the coal car, but the operator, when the boom was working, was able to turn the bucket so that it would drop into the car, then he would close the jaws of the bucket so that it would be filled with coal, and then by the use of the machinery, raised the bucket of coal, swing it from the car of coal around and directly over the tender, and then the jaws of the bucket were opened and the load dumped into the tender, and this was repeated until the engine was loaded.
Previous to the night plaintiff was injured, his duties consisted in shovelling coal from the sides of the car, so the bucket could get it. At the time he went to work the night of the 23rd of February, he was informed by the foreman that the hoist had been broken and on account thereof, the bucket could not be turned by the operator if it should come down the long way across the car, and that at such times he would have to turn it with his hands so it would drop into the car. The result was that the boom had to be turned so that the end of it, to which the bucket was attached, pointed over the center of the one track, and the bucket lowered, filled, and emptied while the boom remained stationary, as neither the boom or the bucket could be turned by the operator. To load the tenders under these circumstances, the car of coal from which the supply was to be taken, and the engine with its tender to be filled, instead of standing on two tracks, were both placed on the one track and coupled together. The boom being stationary, the engine shoved or pulled the coal car under the end of it. The engine of the hoist was then started, the windlass unrolled and the bucket dropped into the coal car and was filled in the usual way, and then raised, and then the engine was backed, shoving the coal car out of the way and shoving the tender directly under the bucket, when the jaws of the bucket were opened and its load dumped into the tender, and this was repeated until the latter was loaded.
On the night in question, plaintiff had assisted in loading three engines, and was loading the fourth when he claims he took hold of the bucket with his hands, and it made a sudden swing and knocked him off the car and severely injured him.
As it is material, we quote his testimony on this point:
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