Wolf v. Terminal Railroad Association
| Decision Date | 02 June 1920 |
| Citation | 222 S.W. 114,282 Mo. 559 |
| Parties | HERMAN WOLF, Appellant, v. TERMINAL RAILROAD ASSOCIATION |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.
Affirmed.
Brownrigg Mason & Allman for appellant.
It appeared from defendant's own evidence in the cause, as well as from plaintiff's evidence, that it was necessary for defendant's switchmen to move the car from which plaintiff and his helper were in the act of removing the furniture which they had temporarily placed there. Defendant's witness testified that "the stuff had to be out of there before we could move the car." Therefore, in assisting the plaintiff to remove the furniture from the car and in turning in the end gate of the car for that purpose, defendant's switchman was doing something the natural effect of which was to expedite his own work which he was employed to do. It was clearly an act done by defendant's employee in virtue of his employment and in furtherance of its ends, and is deemed by the law to be an act done within the scope of the employment, for the negligent doing of which the master is legally responsible to any one injured thereby. Hinkle v. Ry. Co., 199 S.W 227; Green v. Standard Oil Co., 199 S.W. 747; Maniaci v. Express Co., 182 S.W. 981; Whiteaker v. Railroad, 252 Mo. 438; Chandler v. Gloyd, 217 Mo. 415; Garretson v. Duenckel, 50 Mo. 104; Compher v. Telephone Co., 127 Mo App. 553; Haehl v. Wabash Ry. Co., 119 Mo. 325; Felhauer v. Quincy, 117 S.W. 797; Hellriegel v. Dunham, 179 S.W. 763.
J. L. Howell and W. M. Hezel for respondent.
The instruction in the nature of a demurrer to the evidence was properly given: (1) Because the plaintiff failed to prove, as alleged in the petition (a) That the employees of the defendant assured the plaintiff that the end gate was all right and that he might safely unload the furniture over the same; (b) that defendant's employees directed the plaintiff and his helper to unload the furniture by sliding the same over the end gate while it was in the position in which it remained when the switchman opened it, namely, not all the way down; and (c) because defendant's employees were not acting within the scope of their employment. (2) Because it was not shown that defendant's employees were negligent. (3) Because plaintiff was guilty of contributory negligence.
This is an appeal from an order overruling a motion to set aside an involuntary nonsuit taken by appellant in an action he brought for damages he alleged he received when a tail gate or end gate in one of respondent's cars fell upon his feet while he was moving a piece of furniture out of the car.
Appellant testified he was a furniture mover in the employ of Lammert Furniture Company, and was sent, with a helper, to remove the furniture from one of respondent's box cars which stood upon a track in its yards; the team track was on the south side of the car; when the south car door was opened it was disclosed that the furniture car had been loaded from the other side and some of the furniture on that side would have to be moved before the crates next to the south door could be loosened and taken out; appellant's helper opened the north door of the car, and he and appellant lifted two crates of furniture out of that door and placed them on a gondola or flat car which stood immediately north of the furniture car on a track parallel to that on which the furniture car stood; this enabled appellant and his helper to "loosen up" other crates in the furniture car so they could load their wagon at the south door; this they did but left room on the wagon for the two crates they had transferred to the gondola car; they then went to the gondola car and were about to unload from it the two crates they had placed upon it, when one of respondent's switching crews came up, and one of them said: "We are going to cut out those cars." Appellant replied: "All right, we have got two crates in there and we will take them out and put them on the end gate of my wagon," and then lifted the lighter crate over the side of the car and "slid it down" the side to the ground; one of the switching crew then said: "Wait a minute, I'll show you an easier and faster way than that; you won't have to leave it off that end," and he then pulled some pins or hooks out of the end of the car and "kicked it over and let this end down, but they didn't come all the way," and the switchman then stepped upon the end and on into the car, and said: "That is as far as it will go; let's go in and throw it over;" this car end or tail gate was as wide as the car and as high as its sides (3 1/2 or 4 feet), about three inches thick, and iron-bound; the gate was not down on the car floor but lacked about twelve or eighteen inches of it; appellant saw it was lying at an angle; he and...
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