Wilson v. United Rys. Co. of St. Louis

Decision Date02 December 1915
Docket NumberNo. 17591.,17591.
Citation181 S.W. 19
PartiesWILSON v. UNITED RYS. CO. OF ST. LOUIS.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by John C. Wilson against the United Railways Company of St. Louis. Judgment for plaintiff for $3,000 was affirmed by the St. Louis Court of Appeals (169 Mo. App. 410, 152 S. W. 426), and case certified to Supreme Court. Reversed, and cause remanded.

Boyle & Priest and T. E. Francis, all of St. Louis, for appellant. A. R. & Howard Taylor, of St. Louis, for respondent.

GRAVES, J.

Action for damages for personal injuries alleged to have resulted from the negligence of the defendant. From a judgment against it for $3,000 the defendant appealed to the St. Louis Court of Appeals. This was a second appeal to that court in this case. The first time it was reversed for certain errors in instructions. 142 Mo. App. 676, 121 S. W. 1083. Upon this second appeal by a majority opinion this judgment was affirmed; but one of the judges dissented, on the ground that the majority opinion was in conflict with a case decided by this court, and asked that this case be certified to this court. 169 Mo. App. 410, 152 S. W. 426. Hence its presence here.

By this petition it appears that plaintiff was engaged as a laborer by the defendant in the work of loading, hauling, and unloading ties. Plaintiff helped to load the ties upon a flat car, and then looked after the trolley whilst the car was in transit from the place of loading to the place where the ties were to be unloaded and used. Plaintiff was working in a crew of which there was a foreman and an assistant foreman. After the car of ties had been practically, although not fully, loaded, by the direction of the foreman it was started to the place of distribution. Plaintiff had assisted in the loading of the ties, and knew just how they were loaded. He knew that they had not been braced or blocked on the car. He climbed upon the ties, in looking after the trolley, and the ties had been piled up with a straight edge at the front portion of the load, leaving a vacant space between the ties and the front part of the car, and whilst on the ties they slipped forward and fell, and in the fall the plaintiff received the injuries sued for in the case. The negligent acts charged in the petition are:

"And plaintiff avers that defendant and its foreman and agents in charge of said work and of the plaintiff were negligent in failing to cause said ties so piled upon said car to be blocked or fastened to prevent the same from falling, and also negligent in ordering said car to run upon and be moved over its tracks in said negligent condition, and said foreman was negligent in ordering the plaintiff to go upon said car and ties and operate said trolley whilst said ties were so negligently on said car, unblocked and unfastened, which negligent acts and each of them directly contributed to cause the plaintiff's said injuries."

The answer was (1) a general denial; (2) plea of contributory negligence; and (3) assumption of risk. Reply, a general denial. Appellant urges: (1) That the plaintiff made no case on the facts, and hence its demurrer to the testimony should have been sustained; and (2) errors in instructions other than the demurrer. Of these in reverse order.

I. Leaving out of consideration the demurrer tendered by the defendant, the chief error lodged against the instructions given is against instruction No. VI for the plaintiff. This instruction reads:

"If the jury find from the evidence in this case the facts set out in instruction No. I given to be true, and further find from the evidence that said pile of ties as so piled was liable to fall by reason of not being fastened or secured to prevent its falling and injuring the plaintiff whilst at and about the work of his said employment, if the jury find that the said pile was so insecure and unfastened, and if the jury find from the evidence that the plaintiff in the exercise of ordinary care would have known that said pile of ties was so unfastened and insecure, and that there was some danger of said pile falling and injuring him while in the discharge of the duty of his employment, yet, if the jury further find from the evidence that said danger of said pile so falling and injuring the plaintiff was not so apparent or imminent that a person of ordinary prudence, under the same or similar circumstances as the plaintiff, would not have done the work that plaintiff was doing at the time of his injury, as mentioned in the evidence, then the fact that the plaintiff did said work on said pile under said circumstances will not of itself prevent a recovery in this case."

This instruction is wrong. The case having been duly certified here, under the constitutional provision, for our determination, we take the case as one of first impression. In other words, we having acquired jurisdiction in the constitutional manner, we proceed to try the case as if the appeal was to this court in the first instance.

There is nothing in this case to bring it within the rule and doctrine of excited action under the stress of choosing courses of conduct under trying and emergent circumstances. The facts do not bring it within that rule. Where, by force of circumstances, a person has been forced to hurriedly choose a course of action, by reason of previous negligence of the other party, the party thus hurriedly forced to choose his course of action is not held to the strictest diligence, and this for obvious and humane reasons. That doctrine, sought in a way to be invoked in this case, is not in it, because the facts do not bring the case within such a rule. The most that can be urged here is that the servant was acting under the direction and judgment of the master. The other rule has a different foundation.

Conceding now, for the argument in this case, that the act done by the servant was directed specifically by the master, and that the master was in position to know and appreciate the danger of his direction to the servant, the question is: How stands this instruction? In such a case the rule is that the servant can rely upon the judgment of the master, provided that the servant did not know that the doing of the act was accompanied with imminent and impending danger — such imminent and impending danger as would preclude a reasonably prudent person from undertaking the act. In thus stating the rule, we have stated it as strongly for the plaintiff as the case law will permit. Now, recognizing this rule, how stands...

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