*1 bigb “bad a pretty sick, talking fever and was at random.” Dr. him, year Bradford also that testified in tbe Mrs. Goslin told that she Forrest; wanted to ber property deed that be (Forrest) bad good been ber, she him thought asked be wbat about ber doing that, and that be told ber that be know; did be was mighty lawyer.” “ber doctor and poor a Dr. further Bradford testi- fied that be saw Goslin just days Mrs. a few before she went to St. Louis, and that after she Louis, went to St. be from ber received two letters, which destroyed, and that (in letter) she said “they (Forrest family) mighty good to ber and she was ’’ good having a resting. time Dr. Bradford said opinion that in bis Mrs. Goslin was “of sound mind and competent to transact ber own ’’ business. August 19, 1935,
On Mrs. son, Goslin wrote a letter to ber Forrest, wife, pbotostatic bis copy of which is in tbe record. The letter certainly reflects that its fairly author at least mentally. well said, In among this letter she things, that, other when came to Columbia, going she place to turn the him, over to she because was too nervous to it. bother with There evidence offered by defendants, necessary it is not but to further state tbe evidence.
There no claim consideration paid for tbe mopey give If property. Mrs. Goslin was of sound mind wanted to this right property wife, to ber son and bis she bad tbe to do so. There is justify overturning us in nothing finding tbe record would tbe below, who saw and beard tbe of tbe learned chancellor witnesses and give finding do should and due deference. v. to whose we [Green 864; 109 S. W. l. c. Fessler v. (Mo.), al. Fessler Wilkes et 23, and l. c. cases there (2d) 60 S. W. al., et cited.] Hyde so and it is ordered. be affirmed judgment should Tbe GC., Dalton, concur. Bbadley, C., is foregoing opinion by adopted CURIAM: Tbe
PER judges tbe tbe court. All concur. opinion as the Gray and John Trustees Lonsdale, Kurn M. G. J. P. James Railway Company, a Corporation, Ap Francisco Louis-San St. (2d)W. 558. pellants. One,
Division March 1940. *3 appellants. 'Mann, Miller for J. W. Jamison and Mann & *4 for respondent. B. Jo Gardner *5 DALTON, C. This is an damages action for personal injuries for by plaintiff.
sustained brought Suit was under Employ- the Federal Liability (45 A., ers’ Act U. 51-59) judgment S. C. secs.’ and a $10,000 recovered. Motion for a overruled, new trial was filed and appealed. defendants
Appellants assign error on the action- of trial “in court refusing give requested instruction, defendants’ in the nature of n demurrer, at the close of all partic the evidence'in the-case.” The ’ grounds ular (1) are that respondent, injured, when not- en gaged in interstate transportation and, therefore, has no cause of action under the Employers^ Liability Federal- Act, (2) respondent prove failed to negligence actionable ap on the pellants. We shall refer to the parties plaintiff.and as defendánts. In assignment view of the of error we must facts in review'the evi - give only dence. We shall- consideration to' that evidence which -is most favorable to 'appeal. issues of this Ry. v. M. & [Montague K. I. 305 Mo. 264 S. W. disregarded Defendants’ evidence will be except in! so far as 'it aids Wheelock, case.-' [Young 64 S. W. (2d) 950, 953; Armstrong Ry. Co., v. Mobile & Ohio S. W. We shall first determnie whether a submiss ible- case was made for under the federal act. *6 His as a section foreman. employed by
Plaintiff was defendants of main line' track south the first miles the section covered 9% duty keep to It Monett, plaintiff’s yards at Missouri. switch operation of trains. good of in for the his the track condition Smith, Ar- from Fort main Monett The line extended southward and Texas. kansas, and thence into Oklahoma day plaintiff, acting at the direction question the in the On purpose the roadmaster, his men for train at Monett with met work of first south unloading Davis, foreman of the section of ties. One They were to men. plaintiff’s section, also met the train his with day. The left Monett go ties all train south from Monett unload ties on the ties. The 8 a. M. 26 ears with railroad about with loaded be unloaded immediately engine first four the were cars back in cars were along section, the ties the other plaintiff’s and thereafter had no The train along other south. be unloaded sections day, to move but was particular destination or schedule for along from cars slowly so ties could unloaded forward need for line accordance with the the various sections the main p. Fayette Arkansas, m. Rodgers, ties. The train about reached that, Arkansas, night. Junction, It Fayetteville, miles two below appear definitely that all the 26 ears of does not from the evidence of: unloaded, they witness testi- ties were nor when were unloaded. One fied, way,” said ties .unloading “we ties all the another Lowell, Monett,, from Missouri to Ar- were unloaded from this train some,ties Winslow, kansas, day .and the next at unloaded Fayette- Arkansas, picked at up but that cars of ties were additional junction or at miles Each ville two south. section allotment,of proceeded. line received its ties before the train defendants, plaintiff, In as accordance with the custom of engineer section, engine foreman of first rode with while men and plaintiff’s the train was on section. All of section four ties as the Davis rode the first ears and unloaded foreman engine while plaintiff train moved rode the work southward. train, slowing it speed train on his section to control the speeding up places ties were at where down where more needed ties were fewer needed. just beyond point When reached a south end - engine it was Plaintiff
plaintiff’s stopped. section left unloaded, assigned to back to all ties his section were went see if twenty-five, remaining ties, at that perhaps the few unloaded had n . (cid:127) plaintiff’s These later section. point. ties were moved back plain- unloaded, it was plaintiff’s When the ties for section were duty unloading the men in ties other cars over tiff’s assist section, Davis, of that rode the next section while foreman with engineer. stopped, plaintiff, the train- While accordance was. a, made initials and numbers of the cars duty, with record from which the ties for his section been unloaded. The section had cars, ears men, unloading open after the four back to went were to be unloaded on next section. Davis took engine unloading' ties. place to assist in went fully opened, Before these cars were and while was still *7 the ground, plaintiff the train started and climbed on ladder the by riding plaintiff injured this position one of cars. While in was fell a which from a car ahead of him and leaned door back toward striking train, presently and injuring him. We shall deal with particular attending injury. facts his approximately along
A total of plaintiff’s 1200 ties unloaded were year’s supply. section. This was Plaintiff on 132 about had hand they necessarily along ties for use and line scattered but not were they where re- were needed. The number new ties to used in be pairing regulated ordinarily by monthly the main was allow- line by controlled, ance fixed except This in roadmaster. allowance of emergency. eases Plaintiff’s were to take replace orders out and badly decayed all in keep ties order to in a track safe condition. Plaintiff testified that some of the im- ties unloaded were needed for repairing mediate use in the track that he expected intended and to use these ties immediately.
After the along new ties were scattered main im- line it was ties, matei'ial whether already hand, new or old on ones used. were The foreman could handy use whatever were ties or he fit to saw use and there were no the particular instructions as to ties to be used. many There were places where ties needed and where these new dropped. ties were replacing In or plaintiff broken rotten in- ties tended to use the ties that places were handiest which old ties were removed. The plain- section foreman who succeeded tiff on days his section used 40 to 50 ties in 12 some the 10 or immediately following plaintiff’s injuries. The ties used were those happened that they to be closest to where were needed. There nowas way to tell whether the ties just used were new ones unloaded or the previously ones on hand. Appellants’ position that plaintiff is or not en whether was gaged in transportation interstate upon depend must in work he engaged very which injury; was at the time of his there was no evidence that it prior was at or to the time determined injured proceed that the into train would fact the State of Arkansas, or that it would travel certain distance day; being that the ties were “in order be available unloaded if, when, needed,” and as merely surplus ties; that the character of the engaged commerce in which must be plaintiff only by determined not particular work, primary from the but or main purpose by work; accomplished primary his purpose transportation work to assist in
1035 persons merely materials things commerce, but to unload along of the train progress for future that the use; tracks merely main line without a incidental fixed schedule primary future use. purpose unloading local materials governed' Appellants supply” this “surplus insist that is a case and by (2d) 82, Co., Sailor v. Mo. Pac. Mo. 18 W. Railroad 322 S. Aldridge Ry. v. Wabash Mo. 335 404; primary purpose and that since was local work interstate, character rather such cases than is controlled case Clevinger as Ry. Co., (2d) Louis & F. S. W. St. Mo. 369, 371; Ry. Ky. 161, 54 Chesapeake Rucker, & S. W. O. Co. v. (2d) 642, 646.
We apparent think it is there was sufficient evidence from which jury in- that, could find at the time received juries, acting he was of an capacity of a member of the crew interstate train, moving along line of de- the main Missouri, Lowell, Arkansas; fendants’ Monett, railroad between *8 being transported that some of the cars and ties then to another state in interstate if commerce. Even it be considered the primary purpose of the of to unload operation this train was company along right-of-way use, materials for still its own future there was from jury evidence which the could that the movement find of the train an of operation purpose was interstate the direct dis- tributing ties, only along Missouri, right-of-way but also along right-of-way Arkansas, in the of and that State presence upon directly and about aid of said train was said interstate transportation. purpose said that the to dis- It cannot be along right-of-way tribute ties in the State of Arkansas was in- ferior purpose to the to right-of-way distribute ties in this State. The train engaged and its transporta- crew were in interstate tion engaged from time train left Plaintiff Monett. was assisting management, in the control and movement of an interstate time re- particular train. It at the of plaintiff, is immaterial ceiving injuries changing type his was one of another. from work was acting He still as a crew of an train and member interstate change merely type another incidental one work to employment his in the of the movement train. furtherance necessary There was that it for the destined for evidence ties respective portion sections of the main in Mis- line track souri proceed upon to be before unloaded this train could its in- journey, transport remaining terstate ties farther ears just down the into line and the State of Arkansas. Plaintiff had directing the speed finished of this train his over section unloading going back assist in ties over the next sections. get Each section was to its ties before the train moved on. The train proceed day unloading all was to ties. Ties in fact south un-
1036 train Lowell, Arkansas, and tbe way Rodgers all the loaded no evidence night. There was Fayette Junction, that continued on to -It is injured. plaintiff was change of after plan-or schedule not continue injuries, his did plaintiff, by reason immaterial injured time his into another State. At the work on an railroad moving of defendants’ on the main line in fact it arrived Arkansas journey to the State of where interstate day. on the same hauling empty from one State that the cars
It has been held v. Railroad Co. Carolina is interstate commerce. another [North Thompson 305, 59; 259, 260, 34 58 L. Ed. Zachary, Sup. 232 U. S. Ct. same is true Ry. W. Co., 468, v. 171 S. Wabash 364.] another. one engines from State of movement of disabled [Chi 185, 548, Sup. Wright, 36 Ct. cago, Ry. Co., I. & P. v. 239 U. S. R. Mo. Ry. Co., 322 431; Cleveland, C., & L. Kepner 60 L. Ed. v. C. St. ma 299, 825, own (2d) 15 W. The removal of defendants’ S. transporta as much interstate one to another was terials from State Ry. Mo. Co. freight. v. Pac. of revenue tion as the movement [Jonas Ry. Mo. Pac. 123, 124, denied. (M. 48 S. certiorari App.), (2d)W. 530; Terminal Rail Jonas, v. 610, Co. 287 77 L. Ed. Swain U. S. denied, Assn., 1088, 166, 169, 220 certiorari App. road Mo. Aldridge Sup. 18, 525, 48 v. Wabash 406; Ct. S. 72 L. Ed. U. Ry. Co., We, therefore, Mo. hold 73 S. W. jury to the ample there was evidence in the record to submit receiving in not, as to or at the proposition whether time of juries, engaged transportation in interstate or in work plainiff was closely thereof and in accord so connected therewith as to be Ry. Co., v. Wabash allegations petition. ance with [McNatt & (2d) 33, 40; Rogers 108 W. v. Mobile Rail Ohio Gieseking v. (2d) 584; Mo. 85 S. W. Litchfield road *9 Co., 375, Ry. 1, (2d) 379; & 339 94 S. W. Howard v. Mobile M. Mo. Co, 295, & W. O. Railroad 73 S. the was unnecessary to whether evidence also suffi It is determine the and pleadings cient to make submissible case under the Fed theory the that some the ties were needed immediate eral act on repairing being use main line and in the track were unloaded where immediately making them present the intent to use in needed with necessary Ry. Co., L. & repairs. v. Del. W. 229 U. S. [Pedersen 1125, 1914C, Sup. 648, 153; 57 L. Ed. Ann. Cas. 33 Ct. Kansas 242; City Ry. Martin, Sweany v. 262 Co. Fed. Southern Ry. App. (2d) Wabash charged (1) negligence permitting in the petition The car and car door, above, to to be and referred defective unsafe so the door likely fall; negligence exerting (2) to of the workmen excess force was causing against trying open fall; to it and the door in therefore it' to train, negligence starting contrary to (3) the custom' and and
1037 time to giving Mm without practice, plaintiff boarded and before the defend- negligent acts of alleged the get on. Plaintiff said plaintiff’s concurrently, caused acting separately or servants, ants’ general denial, contained to a answer, in addition injuries. The negligence. Plaintiff’s contributory assumption risk and plea of negligence grounds of and only the first third instructions submitted conjunctive, to-wit: them in the above, referred to and submitted was starting plaintiff train while the negligent in that defendants were up get on to giving opportunity him an the ground on and without the car and standing permitting and in said train while same was was loose the door unsafe, in that car door to and track be defective negligence caused slack, much and that such and had too injuries. engine, he left the that, plaintiff after
The to show evidence tended his on sec- unloaded of the which were took cars down numbers remaining these ties from few supervised tion removal of the and men who the section cars; in the direction of that he then back went plain- next of ties. While to one of the cars attempting open were gave the for the walking order back, acting tiff was roadmaster testimony that, There was and the train started. train to start charge train, the road- although still in conductor there- charge unloading of the and master in fact in ties given gave the train to When order was fore the order for start. ground. employee Other and one other were still getting in or in the act of employees were the cars were caught employee to cars. attempting open doors on One opened partly of a door until the door partly in and out car caught get on he to to the inside. Someone called engine. car back from the near end of the seventh ladder caught the on another ear. Plaintiff testi- employee Another ladder against top of cars be- up the rules to climb on fied it was you expected get men in un- cause inside assist other loading get time finish his ties, but that he did not have work caught He of the cars before train started. ladder moving miles per expected train hour and while the or Plaintiff up top climb on ear. stood the ladder with journal” stirrup left “in over the foot with rack,” holding grab “up in irons with his and was hands. noise, ahead, and that a He heard an unusual looked saw door from ground the next in front of him had fallen and was car lean- It ing against plain- back of the car. was within feet of the side rolling tiff, the side of the it. scraping with *10 midway thigh leg of the door struck about the left and breaking train, leg and other knocked him from the wise injuring leg amputated him. left later about inches His was below the joint. unnecessary hip It is to discuss the extent his injuries, it is not the
since contended that verdict excessive. only poles telegraph traveled the distance 3 or 4 before between injured. speed per hour, was It a of 5-10 miles had attained stopped passed place bnt the was before entire train had the where plaintiff fell. of the train and on the Plaintiff was on west side engineer. plain inside a curve and at all times of the was view practice There was evidence that it and of the de- custom safety fendants, for employees, of the not to start such a work all men work; train until of the the cars and set for that it were give open the custom to men to section time the doors on the next, cars men get to be unloaded and the foreman and the get ready in and to unload ties before the train started. There was give foreman, evidence that it was custom to whose section riding just passed engineer, had been and who been had with the time the engine, to come back from unloaded, check the cars and finish unloading assigned get section, ready the ties to his as well as to unloading section, assist in ties over next get and to on the train the train should be permitted before to start.
The evidence with reference to car and car door tended to fell show that door from a Frisco 145,000 automobile car of the that series; they the car was loaded with ties; railroad that were crossways car, to 4 high, stacked feet and within inches 3% door; that while the train stopped opened the door was feet, opened about but could not farther, nor could the men 1% itwhy open; see would not roadmaster then the men directed get open up; car and it opposite the doors on the side opened of the car were and 3 or 4 men in the car attempting were open this door started; when the train that while the train getting way under pushing two men were straight back, door side of the car engine, and toward the and another was pulling it; holding all within a foot or top so of the door, pushing trying it south get and it open; no one was pushing out; suddenly the door y2 inch, about dropped moved off, straight ground. fell down to the weighed
The door about 300 pounds, high 9 feet 7 feet wide, constructed with metal a frame was covered with inch 15/16 tongue groove siding running up and down. The door extended from just the floor of the car to point below the It was roof. larger one of the two doors on the west side of the car and coveredthe south 12 opening side the 9 x in the side of the car. the top extending along
Near of the car the car side of above the doors was 23 foot metal track. It each extended on side opening in the side of car so that the doors slide could back car, along the side of with one door on each opening. side of the purpose guide Its they was to the doors when away moved opening prevent and to them from falling top, out at the and not
1039 support weight This track on the side of' the tbe doors. car angle Looking is also referred to as a iron or at the double Z-bar. edge appears upper against bar from the end it that the is flat the ear out, down, and extends and then turns down and back toward car, edge so that Along the lower forms a hook toward the ear.
top angle of each of doors a similar Z-bar, double iron or but re- versed, appears so that when at from the it looked end the lower edge is top fastened on the outside of the door near the and extends up top door, and and over the of the up out, and then so that upper .edge away pointing forms a hook from the In ear. this manner, upper edge of the Z-bar on the door into the extends by hook edge formed of the lower Z-bar on the ear. In order keep edges together these two hooked further that the so doors will not fall out down, or a board plate or filler is side attached along extends the side of the ear and between the car and the door. With together the Z-bars manner, edge hooked in this and with the of one edge other, hooked may inside the doors be moved or, along back and forth the side of the ear and not off come fall out top. at the extending Above and down from underneath the roof and about 3 inches' over the Z-bar is a sheet metal water in- table keep getting tended to rain water from into the ear doors and dam- aging the contents of the car. opening door, extending
Below the straight in a line side, on each are a total spaced apart. rollers about inches These rollers are level' with each other independ- and each roller is an ent carry weight unit. The rollers of the doors. Bach roller is about 4 inches diameter and so constructed that the bottom the door moves on rim rollers, but each roller is a sufficient dis- tance from the angle side of the car so that an iron which extends down and flange bottom the door awith of an inch % width and inch in thickness can move between the outside rim of % rollers and the side of flange the car. This also runs on the rollers but not on the outside rim of the flange prevents rollers. This bottom of the swinging door from out when open, closed, the doors are or being moved.
There was evidence that a short time after injured inspected the car was and it was found that 3 or 4 feet of water table over the doors missing; and that the track on the side of the car where the door fell was loose and showed a slackness of % up down, allowing inch a total movement of inch in the lower % edge entirely of this track or Z-bar. This looseness extended across opening for the door that fell and the open- extension used for ing by it. The looseness inspection, was discoverable to-wit, merely taking hold of the track where of the water table missing. found, also, It was the roller near the lower outside opening corner of the door fell, had at some
time, than bent so that it was of an inch lower been down % of an not more than rollers, top so that the of the roller was Ys flange edge of -the on the door. inch above the lower rehung fell the door that inspection
At the time of this by only one that, rehung, it could be removed found when *12 the ear or other taking on the side of stops method off the without raising by the door and equipment, putting and that was a bar under out. up inside, pushing it from the then the bottom of the door and way flange In this the the rollers and the door would would come over words, up pushed fall. In other if the out at the door was raised and testimony type it this bottom would fall. There was other by forcing door out the lower corner of could be removed outside flange pass the door so that the of the bottom on the door would end by moving of the one one rollers on the outside and then the door to flange side so that pass the bottom would the other rollers on the out- side. removing Another for stops method a door was to remove the on the side of the car and then the move door the side of the past car and the end of the track and rollers. question evidence tended to that the in subse- show car
quently put on a rip repairs; rip track at Monett for that a track is a place repairing cars; put rip defects in that cars not on a were light repairs, track for repairs yards; since such in the are made that the door track on this car, car was rebolted on each side of the a new door was hung, made and a brake repaired, beam was and a grab straightened iron on the same side of car from the which the fell; door that the track on each side of the car was fastened on with bolts; removing that in the old tap bolts the ends were cut off on the car, inside of the out, bolts driven put ones in new outside; get rusty unscrew, bolts and are hard there- fore tap ends cut to them; are remove of the bolts that were removed loose; were and that some of taps the nuts or on and some were off. There was evidence that worn or loose bolts would cause slack track; that, if a ear and good door were in condition, the holes for the bolts were of the proper size, tight, and the bolts there would be no slack in track; that if good the track was in condition and properly attached, only the door could by taking be removed the back stops off of the side of the by car or forcing the corner of a door past outside and rollers; by bolts become loose the lumber drying out shrinking and from vibration; and nothing that it is unusual to have to rebolt such door track on a car. There was evidence to the effect that looseness the track on car to the extent that it play had a up inch down, or a % inch of slack track, would cause the drop; door to Y% that the track or Z-bar on top of the door drop would out Z- track or bar ear, if the track on the car loose; that if the roller of an door right hand corner referred to at tbe lower % flange on the bottom rollers, that the so inch lower than the rim of the. extend down behind properly the door not would door, door would open the roller, you start whenever would roller, and go out of the up you,” “rare and the bottom would you it to the out, kept pushing if down, fall and the door would up down, in the track open it; that with a half inch slack side to door, right if hand corner and with a low at lower roller being wide, pushed farther opened the door 18 inches and was through off and out the low open, probably pushed the door be would top, causing at thus drop roller and out from under the track fall; by the fact the roller was. door that this would be caused weight so low that the on it door could ride door top; would have to be carried track at the that would open all, track, difficult to door at if there was no slack in the stay but if the track on the car was loose the door would not on at duty inspectors all. There was that it of the car to. evidence go over the good shape, train and see that all of the cars *13 safety appliances good all and side doors were in condition good that if shape a car was not in to put “bad order” it and it rip practice track. Another witness testified that it was to inspect duty inspect cars and that it everything was in general, good running see that the cars were in order. Defendants question evidence tended to that the in inspected show car before it day plaintiff injured; left Monett on the inspection that the by walking length made the full of the train and back on the other side; that anything being no record was made of wrong any with of in train; only the cars this inspection by looking was made at being made, it—no tests inspector and that go did not on top train, as didn’t have time to he do so on outbound trains. of Defendants’ witness duty conceded that it was his inspect safety appliances, including running grab boards and top irons on cars, anything might prove else that dangerous to trainmen or traveling public even to the operation in the of trains. Appellants that “the concede sole issue before this court on this ’’
appeal, respondent is whether made a jury, submissible case for the promptly but undertake application to limit the of that by statement saying respondent by particular is bound theory asserted at argument, the trial in by the instructions on negligence and on interstate transportation; and that unless the evidence supports the upon verdict the basis of particular instructions which given, judgment should be reversed. ruling
Where a on a demurrer to the evidence at the close of only presented the whole case is the issue appeal, on question whether the demurrer to the properly evidence was ruled at the time presented. plaintiff At that time had not par- selected the argu- and no be submitted theory the case would under which ticular given. general A demurrer made or instructions ment had been sufficiency to make a challenges the of evidence the evidence liability alleged any theory in the jury on of case for submissible v. St. Louis Public Service petition. [Elkins grounds negligence pleaded, are Where of (2d) 600, several each, general demurrer is support of a is offered and evidence jury on one of the if a case is made for the properly refused by alleged. case thereafter instructions grounds plaintiff If such theory pleaded, sup- but not jury upon cause to submits the evidence, preserve point such by defendant does ported sufficient ruling merely saving exceptions to the court’s action for review assigning thereon. error the demurrer jury submitted to the insist that since the Appellants negligence, (1) negligent of two acts of to-wit: combination get on, starting opportunity the train had an before (2) fastenings, plain- the defective condition of the door and its jury tiff have made a on should submissible case for the both negligence judgment. these in order to sustain the verdict and acts sufficiency of the evidence to sustain the verdict and theory judgment upon the cause sub which jury appeal. assign to the is not There mitted before us on this is no ment of thereon. error based American Radiator Co. [Mahmet City (Mo.), 1017; Buselaki, 294 S. W. of St. Louis v. error, any, 80 S. W. Neither is if pre such Appellants that, prior served in the motion for a new trial. state they trial, to the time the court ruled on their motion for a “in new upen grounds except all of their motion court withdrew save and ’’ ’ second, charged refusing give first and error in appellants instructions in the nature demurrers to the at the close evidence case and at the close of all the evidence ease. Ob *14 jection that the to sustain evidence insufficient the verdict particular theory upon jury which the cause was submitted to preserved trial, should have been in the motion if it was for new Co., presented Ry. to be here. 79 Joseph v. Hannibal & St. [Blakely 388, 389; Spotts Spotts, 977, Mo. v. 917, (2d) 55 W. Mo. S. 981.] Appellants plaintiff, insist that the to have made a submissibleease jury, for the have should made a submissible case “as to each negligence both” jury plaintiff’s acts of submitted to because injuries alleged acts of would not have resulted from either of the negligence therefore, other, without the of concurrence negligence by respects of defendants in both had to be established Appellants 209 Mo. Railroad, evidence. cite Bonnarens v. Lead Belt 65, Co., 1043, 273 S. W. v. 319 Mo. Brainard Mo. Pac. Railroad 890, (2d) 5 W. the basis upon 15. These cases were determined plaintiff’s theory applicable of pleaded petition as and are not to the facts here. negligent and if a defendant is general
The is “that rule any in another, other that of or with negligence his combines with negligence 'cause, although his dependent, intervening he is liable although cause, negligence proximate or was not sole the sole cause, intervening negligence, independent, other without such City v. Kansas injury.” would have produced not [Harrison S.) Light (N. 7 L. R. A. Co., Electric Mo. 93 S. W. 293.] negli- concurring is applies The cause another same rule where may gent plaintiff of the “It is not the law that act same defendant. go to have jury upon negligent not to the one act of defendant shown merely some proximately plaintiff’s injury because contributed negligent injury and the of defendant also contributed to the act plaintiff been the concurrence of injured would not have without is plaintiff such other act. We to the cannot subscribe doctrine negligent proximately not entitled of to recover for one act defendant contributing plaintiff’s injury injury would not have because negligent resulted without the concurrence of another act of defend- may any ant. injured party negligent directly for recover act contributing regardless negligent may injury, to his of what other act contribute, concur, co-operate produce or injury.” v. [Hild St. (Mo. Louis Car App.), Co. 259 S. W. If jury any theory there was sufficient evidence submit to the of liability, defendants’ petition, plaintiff as set forth in the theory regardless entitled have that jury, submitted plaintiff’s fact injuries except not would have resulted negligent concurrence of some other act on the of de- fendants.
Appellants liability upon insist that no be can based the start ing injured by starting train because not train; starting proximate that the of the train cause injuries; injury no kind to could reasonably anticipated have been at the time the started; train was frequently trainmen ride the outside the train in without jury; falling that the door so reasonably rare that a prudent person anticipated have would not happen; such would and that negligence proved is not such an isolated occurrence but must- predicated upon what anticipated. should have been ex [State Ellison, rel. 463, 473, Lusk v. 1088; Ilgenfritz 196 S. W. Light Mo. Power & (2d)723, proximate In determining question cause the is not whether a reasonably prudent person would have foreseen injury happened, but a defendant is liable for injury which, an after complete, appears occurrence is to be the reasonable probable consequence of defendant’s act or omission. v. Standard [Hamilton *15 Co., 531, Oil W. (2d) 679, 323 Mo. 19 S. In the case of Funk v. 686.] Co., 77, Fulton Iron 566, 570, Works 311 Mo. 277 W. S. plaintiff tossed superintendent ram defendant’s by a metal which injured was super if liable was that the defendant It was held to the floor. appreciable anwas that there ought have known knew or intendent re would engaged thereabout injury to workmen chance that some " that McLord Appellant contends said: his The court sult from act. not he could negligent not because the floor tossing the ram to in hand instant extend at the same plaintiff would anticipate that for order But in juice pan. edge beyond the lower out necessary he negligent one was have been a his act to form precise or the consequences particular foreseen the should have cir if under the it. It is sufficient from injury resulted which ap an there was known, that ought to have knew, or he cumstances engaged thereabout injury to workmen chance that some
preciable 470, Sieban, App. Daneschocky 195 Mo. v. also, result.” would [See 966, 193 W. S. find jury a could well evidence in this case Under knew, or train charge of the agents and servants defendants might reason- injury employees ought known, that some have ably starting of the train before car doors result from the cir- train, that under all of and the men were on the opened, time, due starting train, at cumstances ordinary plaintiff’s, to exercise care to a failure of defendants directly safety, negligence that said contributed jury from in this case which injuries. there was evidence Since concurrent plaintiff’s injuries resulted two could find immaterial were liable it was causes for both which defendants plaintiff’s injuries. proximate one cause of which injury are producing “Where several an concurrent causes injury not have each is an efficient cause without which would causes, may all injury attributed to or happened, recovery may against responsible either or all of the be had culpable, duty persons, although one of them was more owed injured person was not the same. Where the in- them to jury results from two or causes for all of more which defendant liable, proximate it is immaterial which cause.” C. J. [45 Byars 278, 924, sec. 487. v. St. Louis Public Service Railroad, In the case of Newcomb S. W. charged negligence failing with defendant direct causing wrong him to him to his train and board the and also platform upon negligence plaintiff' in the maintenance of getting of the said train in motion. slipped while off while Defend- things, alleged contended, among negligence ant its failing proper train was not proximate to the direct point (182 injuries. of his As to this the court said cause Mo. 1069) negligence 81 W. : “If the defendant’s the cause
1045 trying injured he and was wrong on the plaintiff’s getting of danger that any negligence part, fact get off on without negligent by the further alighting increased upon his attendant platform, would act of in reference to the condition defendant negligence liability act of from for its first not relieve the defendant the accident. ground it from that was remote question 69, is ‘The Negligence, said: Thompson “In section 1 injuries for personal in an action proximate does not arise cause causes, for all or more by resulting from two occasioned an accident ” v. Ill. Cent. also: Lewis responsible.’ which the defendant [See v. 371, 373; Evans 233, (2d)W. Co., 239, 319 Mo. 3 S. Railroad 491; Wil 487, 376, 239 S. W. Co., 364, 293 Explosives General Mo. 468, W. Co., 478, 155 S. C., Q. Ry. App. liams Mo. v. B. & 169 negligence, theory insist Appellants supported fastenings, is not upon based in the car and door defects does by proof of a condition conjecture; evidence but rests on Mo. Co., 319 prove negligent (Wilson cause v. Mo. Pac. Railroad a 308, 21) ; of a after 19, proof W. condition (2d) and or that injury the condition before does not establish existence of any length of v. such had existed time. condition [Conduitt 21, (2d) Trenton, & Mo. 31 S. W. Electric Gas jury properly that a The facts and are such could circumstances time. infer that the car had existed for some defective condition of the origin indication None of the were of and there was no defects recent recently A table the roller had been bent. water in the track missing, from bolts “not this accident.” necessary tap exposed were off the weather. It was to cut they them, indicating were ends of some of the bolts remove rusty. loose, taps missing, the bolts Some of some shrinkage track was loose. It was that it was not unusual for shown becoming having and vibration to result in loose to be the track may retroactive, “An inference and often is that is to rebolted. say, may present infer previous the trier conditions a fact.” Chicago, Ry. Co., v. R. I. & P. 54 S. W. App. [Allen Co., supra; 22 (2d) 787, 793; v. & Conduitt Trenton Gas Electric C. J. sec. 30.] 137, 138, Janes,
In (2d) the case of State this presumption said: “While the existence court continued proven yet a backward, surrounding fact does not run circum- may justify stances as to be such the inference that an established at’ past.” fact must have existed time certain immediate jury There evidence from could that the condi- which find car, heavy tion of the track and such that roller was door was likely being opened fall when that all defects were discoverable by inspection.
We jury hold that there was evidence the record from
could infer that car, defective condition of the as found to after the injury exist to plaintiff, length had fact existed for such a of time previous thereto that the defendants the exercise of ordinary should, care could, have discovered such defects and repaired jury, them. The fact, as triers of the reasonably could properly inferences, draw the from all of the evidence, in the case that, had defendants made a inspection reasonable of the car before they it left would, Monett or could, have discovered the defective con- *17 dition of the fastenings car and door time, by the exercise of ordi- nary care, repaired to have the same or “bad ordered” the ear and thereby prevented have injury plaintiff. evidence, demurrer to the as offered defendants at the close of all of the evidence in case, properly overruled. The
judgment Hyde is affirmed. Bradley, (7(7.,concur. PER foregoing opinion CURIAM: The by Dalton, C., adopted opinion as the of the court. All judges concur. Mary Security E. Relator, v. State White, Social Commission, Appellant. (2d)W. 569. One,
Division March 1940. Aubrey Hammett, Jr., Boy McKittriclc, Attorney General, B. Attorney General, for appellant. Assistant