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

• Citation: 169 Mo. App. 405,152 S.W. 426
• Parties: WILSON v. UNITED RYS. CO. OF ST. LOUIS.
• Decision Date: 31 December 1912
• Court: Court of Appeal of Missouri (US)

152 S.W. 426

169 Mo. A. 405

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

St. Louis Court of Appeals. Missouri.

December 31, 1912.

1. MASTER AND SERVANT (§ 289) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

Whether an employé injured while assisting in moving a car load of ties by the ties slipping down and carrying him with them while attempting to adjust the trolley pole was guilty of contributory negligence held, under the evidence, for the jury.

2. EVIDENCE (§ 265) — ADMISSIONS — EFFECT.

The testimony of an employé suing for a personal injury that had he stopped to think he would not have taken the risk, given nearly 4½ years after the accident, is not an admission on his part that had he stopped to think at the time of the accident he would not have taken the risk, but merely means that looking over the accident as it occurred, if he had to do it over again he would not do as he did, and does not show guilt of contributory negligence.

3. MASTER AND SERVANT (§ 295) — INJURY TO SERVANT — INSTRUCTIONS.

Where, in an action for injuries to an employé assisting in moving a car load of ties, the evidence showed that the work was done under hurry orders of the foreman, and that there was no time for deliberation, an instruction that if the employé by ordinary care would have known that the pile of ties was insecure, and that there was danger of the pile falling and injuring him, yet if the danger was not so apparent that a person of ordinary prudence, under similar circumstances, would not have done the work that the employé was doing at the time of the accident, then the fact that the employé did the work would not prevent a recovery, was not erroneous.

4. TRIAL (§ 295) — INSTRUCTIONS — CONSTRUCTION.

Instructions must be considered as a whole, and, where when so considered they embody correct declarations of the law, minor inaccuracies or omissions in any one of them do not justify a reversal.

5. MASTER AND SERVANT (§ 296) — INJURY TO SERVANT — EVIDENCE — INSTRUCTIONS.

Where, in an action for injuries to an employé assisting in moving a car load of ties, caused by the ties giving way carrying the employé with them, the evidence showed that the work was done under a hurry order given by the foreman in charge, and the court charged that plaintiff had assumed the ordinary perils of the employment, and that, if plaintiff did not exercise the prudence of an ordinarily careful man, the verdict must be for defendant, though defendant negligently loaded the ties, etc., an instruction that, if plaintiff by ordinary care, would have known that there was danger of the pile falling and injuring him, yet if the danger was not so apparent that a person of ordinary prudence, under similar circumstances, would have done the work, then the fact that plaintiff did the work did not of itself prevent a recovery, was not erroneous.

6. APPEAL AND ERROR (§ 1170) — HARMLESS ERROR — DISREGARD OF ERROR — STATUTORY PROVISIONS.

Rev. St. 1909, §§ 1850, 2082, requiring the court to disregard any error not affecting the substantial rights of the adverse party, and prohibiting a reversal unless the court believes that error was committed against the party complaining materially affecting the merits, are binding on appellate courts, and any error not affecting the merits must be disregarded.

Nortoni, J., dissenting.

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

Action by John C. Wilson against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed and cause certified to the Supreme Court.

See, also, 142 Mo. App. 676, 121 S. W. 1083.

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

REYNOLDS, P. J.

This is the second appeal in this case, on the first appeal the judgment of the circuit court being reversed because of an instruction given, that instruction containing the same error condemned by our Supreme Court in Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S. W. 1166, and Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S. W. 78. The cause was accordingly remanded. At the second trial the pleadings were as before and with an exception hereafter to be referred to, the evidence was practically as at the first trial. Hence it is unnecessary to set out either and is sufficient to refer for them to the report of the case as found under the title Wilson v. United Railways Co., 142 Mo. App. 676, 121 S. W. 1083. At this second trial evidence was elicited from the plaintiff which it is claimed presents the case in a different light. There was a verdict for plaintiff for $5,000. Defendant filing its motion for a new trial, alleging among other grounds, that the verdict was excessive, the trial court announced that unless plaintiff would remit $2,000 from the verdict the motion would be sustained. Plaintiff remitting that amount, judgment followed in his favor for $3,000. It is from this that defendant below prosecutes the present appeal.

The first error assigned is to the refusal of the court to direct a verdict for defendant, because, as it is alleged, plaintiff admitted that he saw how the ties were loaded and knew they were in a dangerous condition, so dangerous that he would not have climbed on top of them had he taken time to think of the matter. From this it is argued that this evidence establishes the fact that the peril was obvious and imminent and that plaintiff both knew of the dangerous condition and would have appreciated its immediate threatening character had he taken time to think. Hence it is argued he was guilty of contributory negligence as a matter of law. It is further argued in support of this assignment that the fact that plaintiff did not think of the dangers of his situation will not excuse him, but on the contrary accentuates his negligence, since an ordinarily prudent person will devote some attention to protecting himself while in a dangerous situation.

The second contention is to the effect that the fact that the court on the former appeal determined that there was sufficient evidence to warrant the submission of the question of plaintiff's contributory negligence to the jury is not conclusive on the present appeal, for, as it is claimed, the evidence presented on this last trial is materially different from that presented on the former one. We hold that there was evidence which was not presented at the first trial, the question for our determination now being whether that evidence makes any material change in the case.

The third assignment of error is to the giving of an instruction at the instance of plaintiff, errors assigned being, first, to the body of the instruction itself; second, in giving it at all, it being contended that there was no evidence upon which to base it.

In support of their first assignment of error counsel have set out in full the new evidence which they claim differentiates this case from the case as before presented. We have read all of it as set out by counsel for appellant with very great care, not however confining ourselves to that but also going to the abstract for all of the testimony on this point. In addition to the summary of plaintiff's testimony as to the accident, which is given in the report of the case when here on the first appeal (see 142 Mo. App. loc. cit. 683, 121 S. W. 1083), it may be well to state that at this trial, as on the former trial, it appears that the work of loading the ties on the car was done under the eye of the yard foreman, who, as representing defendant, had charge of the work in which all of the gang or crew of which plaintiff was a member, were engaged, that is, loading ties on a flat car operated by defendant and carrying them on the car, the latter operated by electricity, from the point of loading to the point at which they were to be used. There was an assistant foreman in immediate charge of the crew. The yard foreman came to where plaintiff with the other men was loading the ties on the car. He called out to the motorman and to the crew who were loading the car, "Take this car out and get out of here as quick as you can. They need the track blocks." Thereupon the assistant foreman told the yard foreman that the car was not loaded, to which the latter answered, "Take them and get out of here with them." The yard foreman, still directing the movement of the car, ordered plaintiff, who was the "trolley holder," and who had hold of the trolley pole, to pull it down and let the car coast down. This foreman and plaintiff were standing in the vacant space on the front of the car, between the front end of the car and the end of the piles, and plaintiff climbed up on the load of ties to adjust the trolley pole, when the car starting on a down grade caused the ties, which were without any support, to give way and slide down, carrying plaintiff with them and catching his leg and inflicting the injuries complained of.

Turning to what is set out as the new testimony of plaintiff, brought out on cross-examination at this last trial, we give the salient parts of it. Plaintiff, after stating that as it was loaded the car stood "down hill," that is, the front end higher than the rear, was asked this: "You knew when the position of the car was reversed on account of the grade, so that the rear end of the car was higher than the front end, that the ties would most likely fall and commence to slip because the lean would be toward the front end, did you not?" He answered, "Why, that is a natural conclusion." He was asked, "Well, you knew that?" He answered, "I didn't think of it at the time." He was then asked this: "You say if you had stopped to think, you would have known when the position of the car was reversed there would be danger of the ties slipping and rolling, didn't you?" He answered, "That would be a natural conclusion." He was asked, "But you say you didn't think of it at the time?" He answe...