This is an action for personal injuries sustained by plaintiff while in defendant’s employ as its servant and alleged to have been caused by defendant’s negligence. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff, and the case is here upon defendant’s appeal.
Plaintiff was in defendant’s service as a car carpenter at Chaffee, Missouri, and was engaged in repairing a certain car for which he needed a “knuckle,” of a certain character, which was to be fastened to a “drawhead,” forming a part of the car coupling. It appears that these knuckles are of steel, weighing perhaps fifty or sixty pounds. According to plaintiff’s testimony and that of a fellow workman, plaintiff went to a platform where knuckles were kept, in search of a “Tower” knuckle; and not finding such a knuckle in two “knuckle racks” standing on this platform and which contained quite a number thereof, he began to examine other knuckles lying about or piled upon the platform, and had his right hand upon a .knuckle which he had just turned over, near one of the racks,
Plaintiff and his said fellow workman testified that the knuckle which fell had a holt in the “eye” thereof, which, it is claimed, prevented it from fitting far enough back into the rack to be securely placed therein, by reason whereof it was jarred loose and fell when plaintiff turned over the knuckle upon the platform near this rack.
The negligence charged in the petition is that the knuckle which fell was placed in the above-mentioned rack or stack at the direction of the foreman of defendant’s “material department,” with a bolt in the eye thereof, “which bolt prevented the knuckle from fitting properly in said stack, causing it to fall.”
I. The evidence adduced in plaintiff’s behalf is quite meager. It consists of his testimony and that of the above-mentioned fellow workman who was the only other person present. There is no direct evidence as to who placed this knuckle in the rack from which it fell, but the testimony is that it was the duty of those in defendant’s “material department” to stack these knuckles, this being a separate and distinct department from that in which plaintiff was working. Plaintiff testified that he had nothing to do with placing knuckles in the racks, and had never put any therein except such as he may have temporarily removed therefrom from time to time, in order to get a lower one, and which he would replace. His testimony is that he did not upon this occasion take any knuckles from this rack; and under the circumstances the presumption should doubtless be indulged that this particular knuckle was placed in the rack by defendant’s servants in its material department whose duties were, among other things, to stack and take care of these knuckles. And though the proof does not show that this was done under the direction of the foreman of
Neither plaintiff nor the fellow workman with him observed this knuckle before it fell, and there is nothing to show what in fact was its position in the rack before falling. The knuckle rack consisted merely of slats upon an “A-shaped” frame (i. e., the cross section being an inverted Y), which was perhaps ten feet long. The knuckles were stacked therein, one upon another, by putting the narrower end or part of each knuckle in the opening between two such slats, thus making a number of tiers thereof upon the slanting sides of the rack. It appears that what is termed the “eye” of the knuckle is an opening through the central portion thereof; and plaintiff’s evidence is to the effect that a bolt such as is said to have been allowed to remain in the eye of this knuckle, and which protruded therefrom, would have the effect of preventing the knuckle from fitting far enough into the rack to be secure. While the evidence in plaintiff’s behalf does not by any means make out a strong ease in his favor, it appears to be sufficient to take to the jury the question of defendant’s liability; bearing in mind that, so far as concerns the ruling upon the demurrer thereto, the evidence is to be viewed in- the light most favorable to plaintiff. Indulging the presumption, prima facie, that the knuckles in the rack were stacked there by defendant’s agents and servants in its material department, whose duty it was so to do, the testimony that the knuckle which fell had a long bolt through the eye thereof, and the further testimony to the effect that such a bolt in the eye of a knuckle would have the effect of keeping the knuckle from fitting sufficiently far into the rack to be securely stacked therein, rendering it likely to fall, would seem
It is urged by learned counsel for appellant that there was no causal connection established between the casualty and the negligence charged. But if plaintiff’s evidence be true, it would appear that the injury may be found to have resulted proximately from the stacking of the knuckle with a bolt through it, which rendered it insecure. It is true that the falling thereof appears to have been immediately occasioned by a jar produced by the turning over, by plaintiff, of another knuckle near the rack; but it is to be gleaned from the evidence that under ordinary circumstances a knuckle at the top of one of the tiers in the rack would not in this manner be jarred off, and that one turning over a knuckle upon the platform near the rack would have no reason to suspect that a knuckle would thereby be caused to fall and injure him. We think that it cannot be said that there was no causal connection between the injury and the alleged negligent act of stacking the knuckle with a bolt through it. It is not contended here that plaintiff was guilty of contributory negligence as a matter of law, nor that the risk was one assumed by plaintiff, and under the theory of plaintiff’s case he could not be denied a recovery on either of such grounds.
It is also urged that plaintiff pleaded a specific act of negligence, and that the burden of proving the same rested upon him. This is quite true; but there does appear to us to be evidence tending to establish the specific negligence charged, though it seems the instructions did not require the jury to so find—a matter which we shall discuss later.
It is further urged. that it is not negligence to fail to take precautionary measures to prevent an injury which could not reasonably have been antici
II. But it is clear that the judgment must be reversed because of fatal error in plaintiff’s first instruction. This instruction tells the jury that “it was the duty of said defendant to stack, or cause to be stacked, said knuckles in a reasonably safe and secure manner;” and that if the jury find that while plaintiff was “attempting to get a drawhead knuckle out of said stack,” one of the knuckles fell upon his right hand, injuring it, and that said knuckle fell “by reason of the careless and negligent manner in which said knuckles had been stacked by the servants of defendant,” then to find a verdict for plaintiff.
It may be noted that the portion of the instruction quoted above, which tells the jury that it was defendant’s duty “to stack or cause to be stacked said knuckles in a reasonably safe and secure manner,” is faulty in that it places upon defendant the absolute duty to see that the knuckles were stacked in a reasonably safe manner, whereas defendant’s duty was to exercise ordinary care to that end. However, this is perhaps cured by an instruction given for defendant. [See Pendegrass v. Railroad,
It is unnecessary to notice the point made that the verdict is excessive.
The judgment will be reversed and the cause remanded, with leave to plaintiff to amend his ..petition if so advised. It is so ordered.