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

• Decision Date: 19 October 1909
• Parties: WILSON v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

121 S.W. 1083

142 Mo. App. 676

WILSON v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

October 19, 1909.

1. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE — DIRECTING VERDICT.

In an action by a servant for injuries received while helping to move a car partly loaded with ties, where it was not conclusively shown that he was careless in a way that helped bring about the accident, it was not error to refuse to direct a verdict for defendant.

2. MASTER AND SERVANT (§ 217)—INJURIES TO SERVANT — NEGLIGENCE OF MASTER — ASSUMPTION OF RISK.

Plaintiff, a servant, was standing upon a pile of ties, which had been loaded upon a car under the direction of defendant's foreman, in the act of reversing the trolley, when the pile gave way and he was injured. He was acting under the commands of the foreman at the time. The evidence for plaintiff tended to show that the ties were negligently piled. Held, that the neglect of the master to furnish a reasonably safe place for a servant to work, though with the servant's knowledge, does not make the danger arising therefrom a risk assumed by the servant.

3. MASTER AND SERVANT (§ 291)—INJURIES TO SERVANT—INSTRUCTIONS.

An instruction, in an action by a servant for personal injuries, which, after setting out the different acts of negligence, required the jury to find they occurred, "thereby directly contributing to cause plaintiff's said injuries," was erroneous for failing to require a finding that those acts caused the injuries, since the defense of contributory negligence was in the case, and there was no evidence to prove the accident was in any degree the intervening act of a third person, or of a force of nature.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by John C. Wilson against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

GOODE, J.

This plaintiff was hurt while working at his task as an employé of defendant company, and brought this action to recover damages. He was helping move a car load of ties at the time. The car had been run on a spur track to be loaded with ties, and was stopped at a short depression in the track, which caused the rear end to be lower than the front, and the car stood tilted. It was a flat car about 36 feet long and 9 feet wide. The ties were 7 feet long and perhaps 6 inches thick, and were placed lengthwise across the car. At the west or rear end were braces against which the ties rested; but there were no braces at the front. At that end was what is called a "vestibule," containing the controller and other appliances used in operating the trolley car. We understand a full load of ties, or 250, would have extended the load forward to where it would be supported by braces connected with the vestibule. The car was started before it was fully loaded, there being but 232 ties on it, leaving a space 4 feet wide between the front end of the load and the vestibule. The testimony differs as to the manner in which the front end of the pile was built up. The proper manner, according to the witnesses, would have been to "step the ties"; that is, have them ascend like stairs, the first tie of each layer from the bottom retreating the width of one tie. The testimony for plaintiff goes to show this was not done, but the load was built up perpendicularly in front; whereas, the witnesses for d...