202 Mo. 432 | Mo. | 1907
Action for personal injuries. Verdict and judgment went for plaintiff in the sum of $6,235, and defendant appeals.
At the institution of the suit plaintiff was a minor, ■ and brought suit through L. J. Grimsley, his curator, but before trial he reached his majority and further prosecuted suit in his own ñamé.
By petition it is charged, that defendant is a corporation and as such used and operated a street railway and a certain car and appliances in the petition mentioned; that on October 29, 1901, plaintiff was in the service of defendant, as a laborer, in repairing its tracks; that he was on one of defendant’s cars going west On Chouteau avenue, when said car left the track and plaintiff’s left leg and foot were crushed between said ear' and an upright pole standing some sixteen or eighteen inches from the track, and plaintiff thereby permanently crippled and disabled. The car was used for the purpose of transporting the workmen and ma
“And plaintiff avers that said car was so caused to leave said track and injure the plaintiff by reason of the defective and insecure condition of said car and appliances. That said ear and its appliances and bearings were out of order and defective, and such condition of said car would cause it to leave the track. That the bearing's over the truck did not slide or follow the turn of the car, but were rigid and thus would cause the car to become derailed. And plaintiff avers that said defective condition of said car and its appliances was the direct cause of said car’s leaving the track and injuring the plaintiff as aforesaid. And the plaintiff avers that the defendant was negligent in furnishing said car in such defective condition.”
The defendant first demurred, but such demurrer was overruled. Defendant then filed motion to make petition more specific and definite which was likewise overruled. Defendant then answered, first by a general denial, and further by special plea of contributory negligence, couched in this language :
“Defendant for further answer to plaintiff’s petition, avers that by its rules, regulations and orders adopted, promulgated and given by defendant to plaintiff and other employees of defendant for their safety and protection, such employees and servants of defendant were forbidden to ride on defendant’s cars with their legs and feet swinging over and from the sides of said cars, and that whatever injuries plaintiff may have sustained, were caused by his own negligence in riding on one of defendant’s cars with his feet and legs outside the body or side of said car in violation of defendant’s said rules, orders and regulations.
“And having fully answered, defendant prays to be hence dismissed with its costs.”
The errors assigned are: (1), The overruling of the demurrer; (2), the overruling of the motion to make petition more specific and definite; (3), the overruling of the demurrer to plaintiff’s evidence and to all the evidence upon the close of the case; (4), the giving of instructions numbered 1, 2, 3, 4 and 5 for plaintiff; (5), the refusal to give instruction numbered A-l, A-2, A-3, A-4 and A-5 asked for defendant; (6), the admission of incompetent evidence over the objection of defendant.
Objection was made to the introduction of any evidence under the petition for the reason that the petition failed to state facts sufficient to constitute a cause of action, which objection was. overruled and exception saved. The same point is preserved by motion in arrest of judgment.
Points urged will be considered in connection with a further statement of the testimony as introduced and applicable to the several points discussed in the course of the opinion.
I. The first point made by defendant is that there was error upon the part of the trial court in overruling the demurrer to the petition. The defendant answered, but the answer in no way aids the petition in respect to the alleged defect now insisted upon by defendant. Ordinarily, where a demurrer is overruled, and the defendant pleads by way of answer, rather than stand upon the demurrer, we do not consider the demurrer, and would not consider the point here raised, but for the fact there is a motion in arrest of judgment'which questions the sufficiency of the petition. So that in this case we consider the sufficiency of the petition, upon the challenge thereto raised by the motion in arrest of judgment, rather than upon the demurrer. Defendant challenges the sufficiency of the petition in brief in this language:
“The petition contains no averment that the de
The petition does not contain such specific allegations. The petition does contain this allegation: “And the plaintiff avers that the defendant was negligent in furnishing said car for said work in said defective condition. ’ ’
The defective condition had been previously described in the petition. The petition is not well worded for a case of this character, to say the least of it. Defendant admits the allegations of the petition to be sufficient, if this case was a case where “the servant brings his action against the master because the master furnished him with the tool or instrument, which is defective, inherently defective and unfit for the purpose for which it is intended,” but urges that the rule does not hold good, and the petition would be bad, in cases “where a servant grounds his petition upon injuries received during the use of appliances and instruments furnished him by the master, which were originally perfect, and free from defect and suited • to the use or purpose for which they were intended, ' but having become unsuited through use and ordinary wear and tear, and thus are liable to injure the servant. ’ ’
In cases of this character, defendant urges that “the petition must contain the averment or its equivalent that the master could have known of the defect through the exercise of ordinary care, or being informed of it has failed to rectify it.”
The evidence shows that plaintiff had used this particular car for about six weeks, and that it worked all right at first, but during the last week or ten days, it jumped the track at different times and places, when making a curve. But to test the petition we must look to the petition and not the evidence. Does the peti
In Hall v. Railroad, 74 Mo. l. c. 302, we said:
“The proposition that the petition is defective because it is not therein alleged that defendant had knowledge that the iron rail was lying on or so near to the track as to be dangerous, is untenable. It is alleged that defendant negligently and carelessly permitted it to remain there, and this was not true, if defendant did not know, or, by the due and proper discharge of its duty to keep the track clear of obstructions, would not have ascertained, that the rail was there. In the cases of Serrot v. Omaha, 1 Dill. Cir. Ct. Rep. 312, and Bowie v. Kansas City, 51 Mo. 456, it was decided that petitions, • substantially the same as this with respect to the omission of the allegations of knowledge on the part of defendant, were good. Nor is there anything in Price v. Railroad, 72 Mo. 414, in conflict with those cases.”
Again, in Crane v. Railroad, 87 Mo. l. c. 594, it was said:
“It is further insisted that the petition is insufficient in that it does not aver that defendant either knew, or might, by the.exercise of ordinary care, have known, the defective and dangerous construction of the car that plaintiff was required to couple. If the petition contains no averment equivalent to the one above noted, the objection made to its sufficiency
Norton, J., in Johnson v. Railroad, 96 Mo. l. c. 345, says:
“The specific objection urged to the above petition is, that it does not allege that defendant either knew, or might, by the exercise of ordinary care, have known, that said hammer was not reasonably safe for the purposes for which it was to be used. In the case of Crane v. Railroad, 87 Mo. 588, it is held that in action by a servant against his master for negligence in fur
And later the Crane and Johnson cases, supra, were approved in Young v. Shickle, H. & H. Iron Co., 103 Mo. l. c. 328, in this language:
“It is the well-settled law of this court that the plaintiff need not allege that he was without fault, that contributory negligence is a matter of defense. [Crane v. Railroad, 87 Mo. 588.] It was also held in that case that the plaintiff need not aver that he-had no knowledge of the defective character of the machinery; and that an allegation that the defendant negligently furnished an appliance which was defective and unsafe was equivalent to a statement that the master knew, or might have known by use of ordinary care, of the dangerous and defective character of the appliance. To the same effect is the case of Johnson v. Railroad, 96 Mo. 340.”
See, also, recent case of Bellamy v. Whitsell, (Mo. App.), 100 S. W. 514, opinion just handed down by Johnson, J., of the Kansas City Court of Appeals.
"We therefore conclude-, that whilst this petition is not just what it ought to be, yet it contains averments sufficient to state a cause of action and the demurrer and motion in arrest were properly overruled, in so-'far as this point is concerned.
There is a loose general charge first preceding this, but as best we can construe this petition, the gist of the charge contained therein is in the language just quoted, and this is sufficiently definite to fully apprise the defendant of the issues to be met.
Having reached the conclusion that the petition is sufficiently definite, it is unnecessary to discuss the further question, as to whether or not defendant has .lost the right to question the sufficiency of the petition by not standing upon its motion and answering, after the motion was overruled.
III. Instruction numbered 1 given for plaintiff is criticised. This instruction reads:
“If the jury find from the evidence that on the 29th day of October, 1901, the defendant was operating the railway and car mentioned in the evidence; and if the jury find from the evidence that on said day the plaintiff was in the service of the defendant as a laborer, and that on said day he was riding upon the car mentioned in the evidence, and that he was in the discharge of the duty of his employment whilst so riding upon said ear; and, if the jury find from the evidence, that whilst the plaintiff was so riding upon said ' ear in the discharge of the duties of said employment, said car left the track on which it was moving and thereby the plaintiff’s left foot and leg were crushed between said car and a pole, and injured; and, if the
■We have italicized the portion which is principally urged as being erroneous. The only possible defect in the instruction would be in the words, “that said car and its appliances and bearings were out of order and defective.”
The preponderance of the evidence tends to show that this car had been leaving the track in making curves for some days prior to this accident and that it left it because of a bolt in the bearing dropping down and thereby preventing the truck of the car from resuming its natural position under the car after the car reached the straight track. These bearings consisted of two steel plates, one above and one below, the one above fastened by two bolts to the body of the car and the one below by two bolts to the axle. The bolts were counter sunk, that is to say, were so placed in the steel plates that the head of the bolt would be even with or a little deeper than the face of the plate, so that the two plates would work without interference from these bolt heads. The evidence strongly tends to show that at pre
It might have been better had the plaintiff eliminated the language hereinabove last quoted, from the instruction, thereby confining the instruction to. the condition of the bearings, yet under the evidence in this record, we hardly think the instruction in the form given worked injury to the defendant. Nor is it subject to the criticism of being broader than the pleadings.
Further, we suggest that defendant’s instructions, both those given and those refused, contain, in effect, if not in exact words, the same alleged vicious expression, so that if we could find that the trial court was lead into error, the responsibility rests as much with defendant as with plaintiff.
IV. Plaintiff’s instruction numbered 3 is. also the subject of criticism. This instruction is as follows:
“If the jury find from the evidence that the car mentioned was in a defective condition as set forth or mentioned in the other instructions, and if the jury find from the evidence that the plaintiff knew of said defective condition of said car before his said injury, yet unless the jury find from the evidence that the danger from said car and its defective condition was so glaring as to threaten immediate injury, or such that a person of ordinary prudence would not have
We think the language of this instruction finds full support in the case of Hamman v. Cen. Coal & Coke Co., 156 Mo. 232. The writer was of counsel for appellant in that case, and tried hard to get a different expression from the court, but by a majority of the Court in Banc, the divisional opinion of Burgess, J., was made the opinion of the court. In that case, Burgess, J., said:
“The evidence was clear that deceased was an experienced miner, and that he knew of the condition of the roof, but it does not necessarily follow that it was his duty to abandon his work, if it was true, that defendant had been requested by him to furnish props for the room, had promised to do so, and failed, unless the roof was so glaringly defective and unsafe that a man of ordinary prudence and caution would not have worked in the room, or unless it was so dangerous as to threaten immediate injury. Mere knowledge that the roof was unsafe, ‘and that risk was incurred in working under it’ was not, as a matter of law, sufficient to defeat the plaintiff’s action, if the danger was not such as to threaten immediate injury, or if it was reasonable to suppose the room ‘might be safely used by the exercise of care.’ [Smith v. Little Pittsburg Coal Co., 75 Mo. App. 177; Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Huhn v. Railroad, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 364; Holloran v. I. & F. Co., 133 Mo. 470.] ”
. The cases cited by Judge Burgess sustain his views, and some of them are where repairs had been promised and others where there had been no such promise.
In sections 301 et seq., page 7301, vol. I, of Labatt on Master and Servant, the author takes occasion to
It may be that our court has gone further upon this question than many courts, but we see no reason now for overturning the long line of decisions upon the question.
In passing it might be well to say that neither contributory negeligence by the usual plea nor assumption of risk was pleaded in the case at bar.
V. As a fifth assignment of error, the refusal of the court to give defendant’s instruction A-4, is charged. That instruction follows:
“The jury are instructed that defendant was not an insurer of plaintiff’s safety and only owed to him the duty of exercising reasonable care and precaution to provide a reasonably safe car, equipped with reasonably safe appliances and bearings, upon and about which to work; that defendant was not bound to know of hidden or other defects in said car, its bearings or appliances, that could not be discovered by the exercise of reasonable care in examining the same.
“And you are further instructed that if you find from the evidence that defendant through its servants or agents exercised reasonable care in examining said car, its bearings and appliances, and that such examination failed to disclose any defects in said car, its appliances or bearings, and that defendant did not know and had no reason to anticipate that there were defects in said car, its bearings or appliances, then your verdict will be for the defendant, and this is true, even though you may further believe that there were defects in said car, its appliances or bearings,
To properly pass upon this instruction it will be necessary to summarize the evidence bearing upon the question. Plaintiff worked at nights. The accident occurred the night of October 29, 1901. There is evidence upon the part of defendant that this car was thoroughly overhauled and repaired September 7, 1901; that the car was inspected each morning by the oar inspector, after its return from the night’s work; that this car was repaired on the 29th of October, a new axle and bearings being put in in lieu of an axle which was split; that after its repair on the 29th and before it was sent out on the night of plaintiff’s injury, it was loaded and tested in the yards, where there was nothing but switches and curves, and that it worked properly; that no defects or trouble with the car was then discovered by the inspector; that cars frequently left the track for different causes, and many times the cause of the leaving could not be discovered.
Counsel for plaintiff practically concedes the correctness of' this refused instruction, but says that it was covered by instruction D-3. This instruction is in words, as follows:
“If the jury find from the evidence that defendant’s car, its appliances and bearings, were reasonably safe and secure on the morning of the day of plaintiff’s injury and that thereafter on said day while being used by defendant about the work in which plaintiff was engaged, if you find it was so used, said car, its appliances or. bearings became out of repair, thereby causing the wheels or trucks of said car to leave the track, and that plaintiff was thereby injured, still plaintiff cannot recover in this action unless you further find from .the evidence that defendant Imew of said car, its appliances, or bearings so becoming out
Under the facts in this case there can be no doubt that instruction A-4 is a proper declaration of law. Nor do we think it covered and its refusal justified by the giving of instruction D-3.
Instruction D-3 contains no idea of the proper declaration of law as contained in the first paragraph or part of A-4, and really goes only to the point that if the car was in good repair at the time it was turned out for work on October 29th, and thereafter became out of repair, then the defendant was not liable unless it knew of said car becoming out of repair, or by the exercise of ordinary care might have known such fact prior to the injury. This instruction refers solely to the day and night of October 29th, and has no reference to latent or hidden defects. But an examination of the two instructions shows that they do not cover the same proposition and were not so intended. So far we have gone the limit in sustaining the contentions of plaintiff, but the refusal of instruction Ar4 cannot be excused on any reasonable theory. It is not only good abstract law, but it is peculiarly applicable to the facts of the case, as presented by defendant’s witnesses. The refusal took from the jury one of the substantial defenses to the case, i. e., that even if there was a defect in the car that night, it was so hidden that it was not discernible, upon close inspection. Again, no other instruction measured the duty of the defendant to the plaintiff in the matter of furnishing the ear, as to its character. The refusal of this instruction was gross error.
For the reason last assigned the judgment in this cause is reversed and the cause remanded for retrial in accordance with the views herein expressed.
