*1 herein, appears another school as well district. It from the record an judicially good from for such know, what we that there was reason making provisions inapplicable amendment these counties of the during population growth class. first That is the enormous suburban decade, County, particularly great the last which has been in St. Louis bringing many incorporated cities, .towns about the formation of new villages ones. The many and the extension of boundaries of older 1948 in incorporation of ten new towns since St. evidence shows the County. many are divided Louis It also towns school shows result apparent It that chaotic conditions would district lines. from application provisions .See. 165.263 to this large in- territory situation take from established districts after teaching buildings staffs vestments had been made new school up Legislature had Undoubtedly, built for them: is what the making in mind in this amendment. judgment and the cause remanded directions is reversed with herein ex- judgment of ouster accordance the views
to enter pressed. All concur. Corpo H. v. Ford Motor Frazier, Respondent,
Fred Company, (2d) 95. ration, Appellant, No. 43538 276 S. W. Banc, February en 1955. Court Denied, Rehearing March *2 Shughart Thomson, <& Harry Thomson, Jr., Kilroy P. M. and John appellant Ford Company. Motor *3 respondent. B. Raymond
John Moritz Walter A. verdict tion, defendant, and *4 BOHLING, judgment in a common C. Fred H. against the Ford Motor law action Frazier, plaintiff, for personal injuries Company, secured a corpora- .$9,000 sus- performance tained in the re- of his duties for defendant. He had jected the Missouri Compensation Workmen’s act. Plaintiff invoked the res general doctrine. Defendant’s answer was coupled denial, pleas contributory assumption negligence, risk, and aof servant. Defendant contends fellow ipsa case; failed to make a in ad- court erred the mitting giving evidence and in refusing instructions, and that the verdict is excessive.
Plaintiff employee had been depart- an paint in the ment on the second floor spray gun painter years. as a for about He was transferred to department defendant’s sealer the third on floor on Monday, September 28th, Wednesday, the on injured was working body an automobile on one of defend- conveyor ant’s lines. Defendant’s conveyor overhead plant third of its floor City Kansas approximately long. oblong feet It is an line makes several conveyor by curves. The suspended pressed chain is steel bearing ball spaced rollers along at the chain. The intervals rollers travel on a 4 beam, inch I and are an electric motor driven located body shop through gear sprocket a reduction awith what is known in conveyor the-record as a moves C-131 chain. The about 12 or 13 feet a operation. minute when in A master switch at the motor is thrown the electricians to start stop conveyor day’s for the work. Other are located switches along conveyor safety line. stopping These are switches conveyor and if conveyor again one off, is turned can be started by turning it on if all A position. the switches are in “on” shear pin, made out of material, sprocket, soft is located in the main conveyor if the conveyor hangs, pin this will and cause the shear stop. testimony There conveyor stop at would and start during intervals day rea- hang up and would at times for some son; that when it pin sheared the bounce back- the bodies would wards and if it “unclogged line pin shearing itself” without (cid:127) would bounce conveyor stops gradually forward. The starts and operated by the electric switches. Unfinished automobile suspended bodies from the are body shop to bolts means of hooks attached chains “C” body floor. length The total a chain and hook is about suspension feet. The swinging body, is toward the center of the attachment. body The bottom above the moves about 8 inches *5 floor.
The pass bodies lamp and the through bonderizing spray the or drying tunnel, enough just pass which bodies to for the large through. They department, then enter the sealer move east the conveyor ramp down a of 12 to 15 feet, distance make to a turn west, returning body the north for a few feet and then to the to the shop.
Employees, “sealers,” compound along known as insert a sealer body prevent the seams of the to entering automobile water from and body rusting. steps body the from The sealer into its entering applies section and compound by sealer of a means long calking gun operated hose and air pressure. Stepping under suspended body gun into the body with the hose and to causes the sway a little.
A body, convertible top, automobile one without a entered the sealer department late in the afternoon. Plaintiff entered the body gun. and calking with his hose He would finish his task in about body minute, moving approximately length. its Plain- body tiff testified that when the started into to north the curve “the line to stop balance, lung'ed came a sudden and throwed me off ” “ body abrupt forward. The comes to stop just an and momentarily ** violently it suddenly, just then lurched forward approxi- and mately length body.” unexpected, This was unusual and suspended caused body swing backward and forward and side- ways to be thrown on his back to the bottom of body edges sharp the rear and strike the its hard-surface of parts. metal stop Plaintiff the body did know what caused and lurch. Pie did not it. do body. trembling. got
Plaintiff out of sick, He was weak away, He went to the men’s about feet vomited. room, rest body. conveyor He had returned and finished the convertible just job through, move. started to Another came before he could conveyor they day. finish it shut the down for the leg', right Plaintiff injuries sustained to the soft tissue of his back, hip, neck and No He returned head. bones were fractured. following Monday, day’s for He losing work defendant the two time. pain. regular has testified his work causes him Pie continued earn wages. ramp and the department
The sealer is also to as the referred operation ramp job. as sealer conveyor testimony stopped had that the
Defendant effect in- irregular stopped and started at gradually; and started that it conveyor might it during stopped that if the day; tervals inches; possible body swing that was not an automobile 6 to un- there was no swing plaintiff, for it as contended time involved. movement of the at the Witnesses usual leaving they they plaintiff were saw defendant also testified slipped plant plaintiff told them had work and he after *6 making third ramp on the floor and hurt his Plaintiff denied knee. the statements. plaintiff ipsa failed
Defendant contends to make a submissible res loquitur permitted case equally because the evidence asof reasonable a plaintiff’s injuries inferences of cause or of for causes which de- not fendant was liable a cause or as causes for which defendant was as, liable, among conveyor being such others, of the movement a result of an act of or a in the servant, fellow latent defect mechanism opportunity had which no to discover. Compensation explicitly pro
The Missouri Workmen’s act contributory negligence that the of servant, vides defenses of a fellow negligence plaintiff, by of the and the employee risks assumed employer allowed an accept “shall be who has elected to this employee reject 287.080, if the has elected tó chapter, it.” RSMo § 1949. for acts Under statute control fellow servant whose responsible plaintiff is not the master -wouldnot be exclusive required loquitur in for a ipsa control the master res submission. v. Haase, In Harke W. 2d 75 S. [7], loquitur ipsa anyhow? a res Reduced to we said: “What is case terms, merely negligence simple proved does mean can be it circumstances, and that to the circumstantial evidence certain jury.” an case to accident, character of are sufficient to take the probabilities.” “is inference the doctrine The basis of thé allowable of ours.) Byers Inv. 219 W. (Emphasis Essex law evidence, peculiar The is a rule of 570, 571 doctrine [5]. negligence, operating applicable prima make a facie case of of negligence proof direct It excuses lack of without thereof. proof. precision proving of plaintiff
In a res case the has the burden McCloskey ingredient necessary prima for a case. factual facie each No. fendant of This includes the burden proof Koplar, 329 Mo. 43,454, make a 266 S. negligent. W. 2d submissible Bond v. St. 46 S. Conser 587; Sleater v. of [2], prima res W. 2d ipsa A Atchison, Louis-S. facie factor case on John establishing 'bearing T. & S. F. R. defendant’s R. [5], Thompson Co., Mo. on the F. A. L. [99] R. negligence quantum that de R. Mo., duty the defendant. owed the is the Servant, “Even 500: in 35 Master and stated Jur. § It is Am. master and servant though peculiar relation the defenses assumption rule and the rule as in the fellow servant embodied ipsa rule application of the res regarded as fatal to are not risk parties all in that between distinctive sense cases loquitur its operation necessarily the rule in its between relation, they confine relation carrier than when the narrower limits parties within such is never to loquitur rule ipsa passenger involved. applied except only supports where the conclusion the accident not reasonably ex- part defendant, also every other, obviously cludes is not that condition satisfied inference, physical case and its servant from the accident if which the causes dice to alone, that was *7 stronger more master would be or responsible to the is no servant a negligence reasonable than the it was dice to of inference servcmt, injured to had assumed a risk which the servant fellow also (Italics ours.) which the master not be See would liable.” for 1917E, 1011, Negligence, A. Annotation, 241; L. R. 65 J.C. S. 53,124, nn. 220(8), 501, (b), aa; S. 58, Servant, 57 C. J. Master and b, § § 25; 24, 1000, Negligence, 38 Am. Jur. § in accord having
Missouri for determination are cases the issue jurisdictions. quoted text, with the cases other above as also are from W. 43, In Mo. Removich v. Bambrick Bros. Const. 264 Co., in a 686, digging earth 687, 1917E, 233, L. R. A. who plaintiff, was filled trench, a injured was a bucket when cable broke allowed a case fall him. “To make out earth to The court said: on for the relied application of this res facts ipsa] doctrine, [the ought reasonably as exclude all defensive inferences be such negligence plaintiff, law operation attributable of of statute), defects (absent or that a a servant fellow-servant fellow of hap- instrumentality recent in latent, the lethal which are or so discovery, pening their opportunity as afford for no reasonable hazards connection, assumption lack of of the usual causal of the employment.” (Italics ours.) Mo. Goldberg Co., 328
In J. & Steel Grindstaff v. Sons Structural moving a injured 40 72, 702, S. 2d was 705 [7-9], broke. suspended steel chain which the truss was truss case, ipsa holding In a res plaintiff failed to make submissible by any rea- not the court said: “Now a latent discoverable defect, not break, a cause inspection, may sonable have caused the chain to one; or on any chcum, of negligence part attributable to on the may quality, size, weight, plainly account of its or other discernible obviously used, have been for the for was purpose which unfit servcmt, notwithstanding negligently was used selected fellow ** To responsible. negligence in no the master is wise which for loquitur, ipsa out application make a case for the doctrine any other reasonably exclude facts be such as to relied must ** not While it is negligence hypothesis than that of the claimed. they except necessary every possible hypothesis exclude 123, 328 Mo. Co., Packing v. defendant’s [Gordon entirely that, more inferences (2d) clear if two or 40 S. W. it is 693], negli- points from one which equally them, can be well drawn injury, the cause of gence defendant as part way re- the defendant was in no for which and the others to causes 70
sponsible, proof such facie case prima does not make out facts * plaintiff. (Italics for ours.)
In Charlton
18
S.
2d
Lovelace, 351 Mo.
173 W.
[5],
[8],
the above and
[100]
other authorities are reviewed
holding
“plaintiff’s evidence
which
sufficient to exclude causes
’’
citing
responsible.
court,
cases,
defendants were not
also stated
among
things:
other
prima
“In order
out a
case under
make
facie
the res
doctrine the
reason
evidence must
such as to
ably
injured
contributing
exclude the
of the
of the injury,
wit,
injured,
any
‘that
he was
fault
his
without
’’
own'part.’
among
Co.,
McGrath
Louis Transit
See,
others,
v. St.
97, 104(1),
874(1);
S. W.
Motors
Gibbs v. General
Co., 350 Mo.
S. W. 2d
R.
Sleater
John
[8];
Thompson Co.,
App.,
Mo.
591; Pauley
173 W. 2d
v. Baltimore
&
O. R.
127 S. W.
Mo.
2d 78,
App.,
80;
S. W. 2d
Hart v.
Emery,
[3]
Bird,
;
Estes
Thayer
Estes,
D. G.
R.
App. 312,
N.
Y.
105 N.
E.
51 L. R.
A.
Marceau v.
(NS)
1221, 1224,
Rutland
*8
511;
Ann.
593, 599,
Cas. 1915C,
Skeel,
Prest-o-Lite Co. v.
182 Ind.
365,
106 N. E.
7];
Ship Bldg.
Trim v.
211
[6,
Fore River
Co.,
367
593,
Mass.
rather than in this doctrine meat-grinding dangerous peculiarly applicable where, owing to the subtle and current, injury character of an electric due to servant is to furnishing appliance controlling power a defective electrical or or ’’ light. The is not in hereinbefore Gordon case conflict with cases It handed Division mentioned. and the Grindstaff case were down I day. No. of court on Plaintiff in case this same the Gordon testimony adduced that in electric and not the defect was switch grinding anyone machine; he nor touched the neither else question; electric switch on the occasion the switch had been of and the machine had started under like circumstances out order
71 on two or three to occasions, that the foreman had told him how prevent by placing this piece paper plates a of between two metal in the switch control.
The other plaintiff cases relied Gulf, M. & R. are Cruce v. O. 589, 358 Mo. 78, 80; Ass’n, Mo., S. W. 2d Terminal R. Jones v. bility S. S. W. 2d Act (45 U.S.C.A. [1]. [1] § They 51), Whitaker v. were making under common carriers liable for the Federal Pitcairn, Employers’ 848, injury Lia or death employees engaged “resulting in interstate commerce part negligence whole or in from any agents, officers, of the employees of such abbrogated carrier.” The act the fellow servant rule provisions. instances within its Reed v. Director General of Railroads, 480; U. S. Ct. 66 L. 56 C. Ed. J. d; Am. 14; Jur. 832, § n. n. 1. The § § liability liability under act approaches passenger carrier’s its to a controlling may
and the cases are here. occurrences Some negligent chargeable a happen such nature as do not without under the law to the defendant. Statements critical the Charlton (see supra) may apply cases, supra, Grindstaff the Cruce case, provisions under act, cases within the Federal not rule eases but do negli of the which make the Compensation Missouri Workmen’s act gence 65 C. J. S. of a fellow See comment at servant defense.
n. 18. We are directed no evidence in the instant record inference
existed in the rise a more reasonable giving Gordon case chargeable to injuries the result were not liable for which defendant than their under law; instance, coemployee plaintiff some act momen- to be of the causing common foreman the movement up again tarily according plaintiff, started stopped. conveyor, in- The reasonable quitting time. continued to work until *9 defect of some conveyor stop account ference that did not on is the case but loquitur ipsa may make a therein. Plaintiff able to be instant supra the Removich, other cases under the Grindstaff doing record falls so. short ' instruc requested of its the refusal Defendant claims error in instruction proper because says the refusal was tion G. Plaintiff first general aof E, instructions repetitious of instructions C G was his case. prove resting upon plaintiff to the burden nature on It law. the misstated instruction contend the Plaintiff does’not directing instruction plaintiff’s verdict the converse submitted submitted stating plaintiff’s negligence. After actionable defendant’s shown had not plaintiff that if theory case, jury his it informed did evidence preponderance of all the credible by a and un- sudden a to make permit negligently or suddenly forward again jerk stop and to start usual question personal injuries occasion in and that received a direct result therefrom verdict be for should defendant.
In criminal eases of a requested the refusal defendant’s instruc correctly submitting' tion instruction the converse of the main state’s clearly error, is reversible submit the unless state’s instructions converse of v. Ledbetter, the essential issue or issues involved. State 454; 332 Mo. W. 225, 453, Fraley, 442, 58 S. 2d State 342 Mo. Fraley concluding 2d also W. case ruled that [2-4], directing the state’s verdict instruction "and unless words you you acquit so find and believe from the evidence should the de fendant,” effect,, a words like was not sufficient converse sub requested justify mission and did not proper the refusal of a converse Fraley expressly conflicting holdings instruction. The ease overruled observations State v. 309 Mo. W. 274 S. Sloan, Fraley case; other cases mentioned and in so 738[6], ruling cases, desire, ought stated: in criminal if they "Defendants so justice right jury have to submit defense in a their * * way by direct instructions. In civil cases defendants have the ’’ right way. submit their defenses instructions a direct In Quinn, State v. 344 Mo. 1072, 130 S. 4], [3, “ given informing jury state’s contention that a ‘if, instruction evidence, you consideration of all the have a doubt reasonable ” guilt, you acquit,’ sufficiently defendant’s should covered de- instruction, justifying refusal, fendant’s converse its overruled. was plaintiff’s In case City of Relford v. Mo. Kansas Pub. Serv. App., 50 S. W. 2d defendant’s refused instruction was [3], ignore ground found to recovery plaintiff; submitted but the court also properly law, "nothing stated had it declared the it was negative more than already upon,” statement of the law instructed and its was not refusal- reversible error. Earlier cases are like effect; Kirkpatrick Creosoting see v. American Mo. App. citing S. W. 2d 24], appear cases. Other civil cases 1004[22, harmony Fraley, supra. to more in with State v.
The instant defendant’s refused instruction submitted converse plaintiff’s instruction plaintiff’s on the merits of case was not covered other behalf In instructions of defendant. Boles v. Dunham, App., court held it was error to [3], presenting plaintiff’s refuse defendant’s instruction converse of stating': undoubtedly case, "Defendant entitled to it.” See Davis v. Springfield Hospital, 196 S. W. [4], In approving a defendant’s submission converse directing cases, verdict instruction in civil we have said the de proper Borgstede fendant to a converse entitled instruction. Waldbauer, 378; W. 2d 373, Kimbrough Chervitz, *10 461, 466; Lindquist v. City 353 Mo. 186 S. W. 2d Pub. 1154, Kansas 366, 169 S. W. 2d 369 Broderick Serv. 350 Mo. v. 905, [5];
73 rulings Birennan, have App., Mo. 687 Like 686, S. [1-3]. been made in res Pub. Serv. West v. St. Louis cases.
Food 361 Mo. Stores, Inc., Mo., 252 W. 2d 740, 236 S. W. 2d S. 308, 343, 311 [5] 344 ; [1, 2] McCarty ; Quigley v. Milgram v. St. 169, 201 170 Co., Mo., Louis Pub. Serv. S. W. 2d [1-5]. City, 868, In v. 871 an- McCormick Kansas S. W. 2d Mo., [3], submitting granting order an instruction giving new trial the of negative plaintiff’s theory the converse of by hypothesizing of the nega- plaintiff’s by hypothesizing which, true, if submission or facts tived an unsafe reversed and by condition as submitted was plaintiff, judgment holding the defend- ordered reinstated. the refusal of In proof fully of covered an instruction ant’s burden instruction, given error, in v. plaintiff, on behalf was the court Counts not Bottling Coca-Cola Mo. 149 W. 2d observed 418, S. [7], had complaint that defendant had a basis for the would have sound findings hypothesized upon an of fact evi- instruction of fact issue dence. plain-
In instant that the case defendant had substantial evidence injured any conveyor; tiff was not action of the that stopped did manner de- not and could not have and started in the plaintiff. scribed in the on behalf conclude the de- evidence We bearing was a converse on the merits fendant entitled to instruction logic It same appears submitted case. basic in criminal apply the issue under discussion should civil as cases. instruction, hypothesizing directing Plaintiff’s verdict after “ ** findings, you are that from certain continued: then instructed * * you may facts aforesaid infer
such negligent; you may you find, unless believe and all so find from occurrence, circumstances evidence facts aforesaid * megligence defendant; if not due so, was ours.) says (Italics the burden Defendant italicized clause shifted proof the con The instruction follows in substance defendant. Haase, suggested ipsa v. clusion for a res submission Harke S. l.c. 1004. l.c. 75 W. 2d McCloskey in 329 Mo. 46 W. 2d Koplar, Since v. S. ipsa conclusive of a defendant’s in res case is not
ference although binding on be not rebutted. The inference is jury requiring that under the law it substantial evidence the court in jury; the facts of the fact submission occurrence, the inference of do warranting negligence, of negligent. jury compel finding that defendant was Sweeney Erving, v. Haase, quoting U. supra, Harke 1914D, 905; Ann. Duncan v. St. Ed. Cas. S. Ct. L. 964, 966; W. 2d Co., Tabler Pub. Serv. Louis Perry, W. 2d Turner Missouri-K.-T. *11 74
R. M. son, T. & S. F. R. Lovelace, Co., & O. R. 28,Mo. Mo. 142 S. W. 2d supra; 216 W. S. Duncker v. St. Louis Pub. Serv. S. W. 2d 2d 129 A. L. R. [7] [4]; Conser v. Atchi Cruce 829; Charlton Gulf, 2d you find [2, “Unless believe and 7]. from all the facts and circumstances evidence that the aforesaid occurrence” gives was not due to of the defendant rise thought that there must be finding evidence of record to warrant a that defendant was not notwithstanding a does negligent, not have the burden the instruction, read error. Welch Thompson, case, has been sustained as as a establishing whole and against he was not with defendant’s negligent. However, other instructions in presentation of 79, 85, complains
Defendant of the admission of certain evidence over ob- jection with respect plaintiff’s to the extent injuries and the amend- plaintiff’s ment of petition at the close of all the evidence. Matters of this nature should not live issues be. retrial. The case was fought hard and there foreign are incidents in the instant record presented. issues may Other readily contentions obviated with- affecting plaintiff’s out submission. judgment is reversed and the is Leedy, remanded. Hol-
lingsworth, Ellison Wesihues, and JJ., concur; J.,-concurs Dalton, result; Hyde, J., Gave, Special Judge, dissent.
PER foregoing opinion by Boi-iling, C., CURIAM:—The adopted opinion as the of the Court en Banc.
PER rehearing CURIAM: On motion for respondent con requirement tends that the reasonably every that the evidence exclude hypothesis other than the fully defendant’s has met been by plaintiff’s satisfied evidence; opinion erroneously and that the by failed state (1) the facts shown the record, as follows: that the employees plaintiff fellow operate were forbidden to the switch conveyor line, only foremen, and maintenance electricians that; men permitted (2) anyone were to do that had turned a-switch stop conveyor stopped gradually, operating line would have if normally; (3) only employees that two of defendant’s at were near particular saw.-any time and neither themof turned a or switch so; (4) standing one else do plaintiff suspended that in the body auto and could have reached the switch if he had tried. not solely It will be noted that all of this evidence is directed operation conveyor by switches, however, of the an electric switch or testified, operated opinion shows, as the stops gradually electric with maxi- switches the starts swing any mum stopped of six or seven “If with of the inches. it is switches, stop.” gradual it will make a The evidence mentioned as having operation only been omitted tends to exclude the switches and forward backward swing lurch and as a cause the violent in other servants acts fellow sideways, but it did not exclude switches switch respects operation of an electric than the mere action the unusual testimony show own tends with interference to the control or complained of was due electric current a switch or switches. conflicts
Respondent opinion further contends making a servant’s employee “any negligence rule that of a fellow *12 relied The cases place of work to the master.” unsafe is no defense question as to whether rule, support the do not deal with under a. case of plaintiff has made submissible doctrine. matters as to assignments necessary It will not review other fully opinion. are which covered in the rehearing
The motion for a is overruled. No. Appellant, Respondent, v. Dock Booker, State Missouri, (2d) 104. 44274 276 W. Banc, February 1955.
Court en Denied, Rehearing March