*1 view, which suf- plain would be husband curve We feel support part of the verdict. do not ficient substantial .justified holding, under -the facts and circum- that we would be case, abused its discretion or that their stances just. fair verdict was not Ferguson Sturgis, CG., concur. judgment is affirmed. C., adopted foregoing by Hyde, opinion is PER CURIAM:' The judges All concur. opinion as the of the court. Railway Ap Company,
J. Louis-San Francisco Mit v. St. Jones (2d) 94. W. S. pellant. 63 24, August One, 1933. Division *2 Mann, appellant. E. T. Miller' and Mann <&Miller for *4 respondent. & Gardner for Sizer *5 a on judgment a from STURGIS, appeals C. The defendant plain- The action. injury $15,000 personal for plaintiff in a injured, who,
tiff, foreman, was a with other section three men, maintaining line engaged in main was a section defendant’s through Alabama, extending Birmingham, railroad this State from plaintiff Missouri. That and defendant were en- City, to Kansas contested, gov- gaged in interstate commerce is not and the action is by .Liability Act. Employers’ Federal This section crew erned injured while this was furnished a motor hand car and was plaintiff replace crew ear on the track order attempting this motor Missouri, day’s Everton, near work. the close of the to return to feet the track some ten or twelve This hand car had been set off during day. The at work distant therefrom while the men were placed track ran and hand car was south east and west this right angle replace it track a with same. To on the track and at tools, by using track two their improvised the men made skid or right a. bar, long placed feet claw a line some five and at bar and rail, resting which was some rail, angle to south one end ground. other higher ties, end on six inches than improvised rolled this track and thence car was then onto The hand rail then turned onto of the track and over the south northward accomplished by ear was This movement of the motor such track. one, taking men, being hand plaintiff hold of the of the four each lifting shoving it forward. corner, and then and car, one at each high sills was about and the side hand ear two feet The bed by were connected a rod at either end and projected a few' inches facing south, and men, lifted two front .forming a hand hold. The north, car, men, facing lifted hind and the two pulled track. It was get onto the railroad car so as to pushed the and injured slipping and plaintiff during this movement by being down the hand in its for- thrown falling down or backward over the just plaintiff stepped had movement ward was caused claims that rail. Plaintiff south assisting in his work. him three fellow workmen or all of some end with at the north who workman worked end were Thorpe and the two at the south car was named assigns negligence in words: these petition Lollar. The Sparks and end pushed up that the north car was so -when said motor “That rail, stopped the south same was near thereof over,the track, rail of said stepped south Thorpe rail Thorpe stepped the south had over -when he and states standing proximity close plaintiff was stationed and while of said car and car, was ahold said and while the north end of track, pulling car north onto said said to assist preparing -working plaintiff, sud- with employees, then other the defendant’s shoved, moved, pulled warning, pushed, without denly suddenness, against onto car forward portions certain violence, and frame and that the bed force *6 thereof, parts car, caught, at the end of against, north said struck plaintiff’s legs, thereby and hit so that then and feet slip plaintiff were knocked, shoved, thrown, caused to and and fall in legs, caused to backwards such a that position hip, his lift upon against ties, and head struck and ground, rocks, track, thereby north plaintiff rail of said so then and that received injuries: same.) following (Describing . . . Plaintiff states injuries directly that said were occasioned, caused and in whole part, by in negligence or the carelessness and defendant, of its agents, and employees, employees, servants in that: said Defendant’s assisting whom plaintiff handling in car, said and carelessly negligently shoved, pushed, moved, pulled said car forward speed violence, unnecessary force, plaintiff with while was stand- ing immediately of, in proximity to, ear, north close said when they knew, ordinary of known, or the exercise care could have plaintiff that and in was so stationed such that such move- injure plaintiff, ment of said car was liable to strike or cause fall, they in and, him to so moved said car forward and struck plaintiff notice or without of their intentions to do so. negligent they That were further and careless in that defendant’s employees, plaintiff assisting, whom was then said failed exercise ordinary care coordinate their in handling movements said car plaintiff and him, aforesaid, with those of to work in unison with against in that ear moved and shoved said forward and unnecessary plaintiff warning, with force violence without plaintiff their so, notice of intentions to or do a manner time when had expect and at a no cause to anticipate or movement; that one or more acts of employees, defendant’s or one or more said said employees, as acting separately concurrently, aforesaid, directly caused, or in whole injuries.” part plaintiff’s general plea The answer was a denial and a contributory neg- ligence assumption part plaintiff. of risk on injuries consisted of
Plaintiff’s bruises and the fracture of his joint thigh hip bone and so severe and permanent present point does not here defendant the verdict and judgment is excessive. Appellant’s principal first insistence is that the court submitting the case to the
erred it should have sus defendant’s demurrer to the tained evidence and directed a verdict assignment it. This necessitates at least short review evidence. gang
All experienced the workmen of this section workmen in this line of work. While was section foreman or boss authority work, with command and direct men their there being only ordinary three of them other than the and complicated, work give any did not this occasion directions or commands' in accident. The four connection workmen were so familar with the work be done and so used to *7 doing it, especially in handling ear in and putting it off on track, necessary given. the railroad handling that no commands or were In the motor ear man his place each had and knew work and particular what to do. Each a man worked at corner car, plaintiff the Thorpe Sparks and at one end and Lollar and they at the other. put As the car it back stood when started to on track, the railroad and worked at the corner northeast Thorpe They at the northwest pulled corner. were in front and the car going north and crossed rail track back- the south wards. proper position Each man took his and as each could see and others, word, ready, observe each, any when all were without in part moving They did his in the motor car toward the track. This, however, implied sense automatons. workman each observing others, would use care movements act others, with unison coordinate his actions with that of his fellow workmen, endanger nothing safety. and be observant to do to their negligence. To do otherwise would
We think there is substantial work- evidence that fellow perform part according men did not this of the work to stand- this ard. placed The first movement of motor car it near and in line when, consent, skids, by stopped with the front common with the or end move- north near the south end of such skids. The second placed ment the motor car on the skids the front end some two rail, again feet from the south when it came then to rest. It was working necessary Thorpe, at the north end track, between the motor car rail step and the south to over position stooping helping pull this south rail and be in a the front making wheels the motor car rail. over this It was this move- plaintiff slipped moving ment that and fell was struck car or injury. and knocked down to his Plaintiff’s claim is that the other violently forward, striking car workmen moved or shoved the motor down, leg knocking him any without and before adjust ready get (or had time to himself move forward rather backward) with the ear.
Plaintiff testified in substance: up top
“We had worked the motor car of the bars or skids with Thorpe stepped bars. all the wheels on the rail I over the first. working was at his side and ahold of the same cross bar. I looked stepped just got over around and the rail and Ias over the rail jam car with both feet the came on with a the bar the motor- back in the car threw me middle of the track. It struck me about the given any signal I knee. hadn’t I to come forward. gotten hadn’t in a pull just forward. like (illustrating). It onto pushed up I gotten over looked hadn’t were’going push they know
me me. didn’t unbeknownst I pull. chance to I before I had it on me: was down knocked killed like have came on with such rush it knocked me back anybody hit.” me—hard as ever was
On said: cross-examination he I “Everyone was to work at. knew which car he corner anything. give any say my didn’t orders it was not custom got hold everybody Each went and and as got fellow hold soon ready feet pull we first moved it two to move. The we some skids, bars pull and on the second all the wheels were on something front south rail. That wheels like two feet from the got I first and Thorpe stepped rail. over Thorpe when over the rail, give I I before step around over the could looked shoving I orders, me. pushed I them it on down *8 you you just just I like this can show better than can tell how it was^— I (indicating). just stepped I and When looked around over. just (indicating) like hit mo stepped the car came on that and over anybody. right pulling was not car unbeknownst to It on the there My me. not slip that when it hit foot did till after last movement I got were when knocked it struck me. Two little marks made ’’ down. controversy' plaintiff There was as to whether considerable the agent company’s and who had not stated to the station to the doctor falling slipped, treated him that the cause his was that his foot plaintiff report oW and was the accident made confronted by agent signed by plaintiff the station which he stated local fell, hip striking tie. on slipped plaintiff, that his foot he stand, said no such statement had said the witness that he made but car. by at all the parties to these times that he was knocked down signed by plaintiff Similarly as to a statement to defendant’s made tie, agent, which the slipped claim he said his foot off end of the plaintiff, stand, making any denied on the witness such statement agent put get he the claim to in the state- testified that tried to and, ‘I me they him that ment, was knocked down—‘ told knocked that he down, way. He pushed report car me. He did it that upon the not change get slipped.” it that I boys said it would the in bad say was course, plaintiff’s injury whether Of it was the brought causing fall, him a risk by slipping his about foot work, his at not caused by plaintiff as incident to least assumed defendant, by car by negligence of or was caused considering striking knocking him down. AYe are now him and including evidence, plain- that of whether there was substantial he and knocked down the forward himself, tiff was struck workmen. plaintiff’s caused fellow motor car movement of the witness, only asserting that he told these Plaintiff, was as parties why injured, how and he was such was the truth. but that
Plaintiff was part Thorpe, witness corroborated at his least being other workman at front end car as it motor was moved. He testified that in this movement of the motor last which rail injured, south stepped was that he over the noticing just in, and without looked position plaintiff what he Lollar, at car, one motor two men at south end of the they gave that Lollar him a mean wink, nod which he took to Tie ready go. they way He sometimes. said worked grunt also it some- customary or do for someone to nod or thing they said that ready go. indicate that He further car, on it they pulled this occasion when Lollar on nodded coming down. they expected faster than and knocked the The north wheels were over south rail when about ahead, go gave signal knocked or shoved down. When Lollar plaintiff’s the motor car and struck moved forward about two feet leg. He said: further I leg it mine.
“The car struck before struck leg. saw at same It hit mine fall rod hit time, from grabbed kept but it didn’t knock down I hold me falling. usually expected, I comes.” came faster than faster than it workmen, Emery
'One for defendant Sparks, testified motor car was the claw which the described bar used as a skid on resting up having rolled a “ball” at the end over the south rail as looking, when that, while was not rail, the south and testified immediately over this ball the wheel of the motor car reached “jammed rail, further testified: south it there.” He jar. The and felt my “I frame of the had shoulder to the *9 (indicat- something that like up bar ball above the rest of the stuck It one against was ing). run that. wheel to That would cause the I was in a lean- bar. ball on the of the north wheels that struck the see did not car my against and ing position the ildth shoulder fallen he had fact that my to the called attention Jones fall. ’What my and, having shoulder claw bar hit ball the was there, it that jar on that lying Jones up and saw my T head it. raised I the felt of I it. knew of first is the track and that in the middle of the jar I when right up and felt went climbed bar and wheels it faster, than course—faster moved of wheels it. those -hit ordinarily did.” loca- evidence with the other in taken connection When jury it, front in plaintiff fell at time motor car tion and felt this witness jar which may have concluded that well bar the claw end of on the striking this ball wheel to the attributed plaintiff. against the motor impact was in fact the Lollar,' de testified for workman, Robert William The other Thorpe at workman winked nodded
fendant and denied that he signal go. car, aas the last He that movement of violent, just happened, when the accident was not sudden or but ordinary However, movement, jar, an and he felt no of the car. he he in position he said that did see fall or not Jones see what fell, then, why by way when he Plaintiff did not know fell. shortly impeachment, proved witness, of contradiction and that this occurrence, parties, explanation after the in of how stated to two workmen) injured, “they gave be (the Jones came to other up the car a shove and when he looked had knocked down hip.” and broke his Defendant insists evidence ad- this only for purpose impeachment missible and to discredit as and that it be taken on to the evidence witness cannot demurrer of the truth evidence of the facts stated the witness. Plaintiff its purposes purpose insists that this in for all unless evidence went jury, be which and effect limited instructions defendant Such, quite sure, in this the prac- did not do we are would be case. jury, with the since the tical effect evidence but demurrer ease the evidence is to the court before the reaches the addressed agree jury, inclined with we are defendant’s contention. [Gareshe etc., President, College, v. St. Vincent’s Mo. 332.] think, however, that is substantial evidence We there abundant evidently which, believed, jury, plain- if sustained as it petition that workmen tiff’s averments of his defendant’s other sud- against pulled motor car denly and without shoved this thereby plaintiff plaintiff with such violence that force and then injury, knocked and to his and that thrown down defendant’s guilty shoving pulling other workmen in unnecessary with and violence without said motor forward force injured by position likely such warning while ivas in a negligent movement, in such other forward and that workmen plain- unison with failing movements and act in to coordinate their .handling such car so not to move and shove movements tiff’s at a did not manner and time said car forward witnesses, especially anticipate movement. The expect or demonstrations, by their at times illustrated movements plaintiff, positions actions jury, their connection presence advantage which do accident, giving an we to the therefore, was, properly The demurrer overruled. not have. plain note defendant’s insistence that In this connection we nothing did know there was indicate fellow workmen tiff’s ready in a have the was not motor car *10 question agree fully We of three workmen forward. moved shoving ear when and being negligent forward they by appeared they conditions as must be determined manner did require not to search care does one for the time. Due to them at reasonably prudent person which a against an guard occurrence or
813 anticipate under the not circumstances. would v. Grafeman- [Wecker Co., 451, 326 31 (2d) 977; McIntosh Ice Cream Mo. S. W. 974, Nelson Co., 655, (2d) v. Heinz Stove 320 8 S. 918, 921; Mo. W. State ex rel. Ellison, 463, 271 473, Lusk v. Mo. 196 S. 1088; W. City Fuchs v. 620, Louis, 610; St. 167 67 S. Mo. W. American Brewing Assn. v. Talbot, 674, 684, 141 42 Mo. S. W. But, said, as we have 679.] required workmen were to be position observant of the and movements of their fellow Avorkmenand to act and move in unison with them and likely injury. avoid act or movement to result in Each man Avas plain and his easily view movement observed others, required and due care alert, observant, each Arorkman be and careful perform not to an likely act at a time in a or manner injury result in Avorkman. felloAV Whether or other this workmen moved motor car forward at a time in a manner injure likely plaintiff properly Avas jury. for the v. [Wheeler Co., 322 271, 494; Missouri Pacific Railroad Mo. (2d) S. W. Karagas (Mo. a-. Union Pacific App.), 1100; Railroad Co. 232 S. W. Co., Martin v. Union Pacific Railroad App. 307, Mo. 253 S. W. 513, 516.]
The fall injury contention that Avascaused slipping foot Avassubmitted jury on defendant’s instruction and the against it. jury found The court also instructed the for defendant that the mere .fact that one more of employees pulled defendant’s against plaintiff, causing or shoved the fall, him to does plaintiff verdict, not of itself entitle to a jury but that will find you employee for if that such defendant find or employees had no ground reasonable to believe and did pushing not believe that the shoving at the time and Aviththe force shown would naturally probably injury plaintiff. result in This was favor- enough able for the defendant. The was also instructed theory defendant on the was a mere unavoidable accident. Nor think do we that' under the evidence here can held, law, a matter of being to have assumed the risk of his injured given in the manner shown. Defendant an instruction effect that on assumed risk to the assumed all the risks and dangers ordinarily work in engaged, incident to the which he was dangers negligence also such risks as here caused dangers if risks employees other were known himto or were prudence. person ordinary This obvious to Aimsalso favorable defendant, enough as we doubt whether the doctrine of assumed any application negligence to the facts here. risk has of these shoving against servants of this motor fellow car forward Avithout and with such force and violence as to thigh regarded knock him doivn and fracture his cannot be as one ordinary dangers risks and incident the employment, nor ,eo- regarded part can as an act of it be of such *11 8.14 or plaintiff; the
employees prior which was to occurrence known to re- knowledge. jury -him The impart was so to as to obvious quired finding plaintiff;. As in Koukouris find otherwise in for to 498, 545, 495, 186 S. Co., App. v. Union 193 Mo. W. Pacific Railroad Liability as- Employers’ the Federal Act “eliminated defense of sumption plaintiff injury risk in where the was caused cases working. negligent act of a fellow servant with he was whom Ry. Horton, 233 Air Line v. U. S. If the defense [Seaboard 492.] risk available in a ease of this it would assumption of kind imagine imposing circumstances which the under rule difficult to negligence employer a liability upon the for fellow servant In 214 applied.” Co., Martin v. Pacific could be Union Railroad App. 513, 515, 253 S. it said: “It is 307, Mo. W. is certain Hughes risk (plaintiff) did not of the acts of assume tiling out him. Director Morley ‘dumped” the on to v. wlio [Reed 92, 66 L. . . Railroads, 258 U. S. Ed. . An General of 480.] assuming arising treated the risk the work employee is not as from ordinarily it, until he aware of unless is so obvious that an becomes under prudent appreciated the circumstances ivould person have General, supra, In v. Director it is said: “In actions it.” Reed certainly of assumption Federal Act the doctrine of risk under the a fellow which application has no were the servant injured sole, have party expected, could not foreseen or is the injury.” also, Chicago, R. [See, immediate direct cause of L. Ward, 18, U. S. 64 Ed. Ry. plaintiff’s I. & v. If Pac. 430.] by him, injuries in the manner the means caused claimed in the case. assumption of risk there- is no telling principal instruction it must what Plaintiff’s plaintiff a is criticised. return verdict for instruc find order to This petition. requires finding than a is that the tion not broader unnecessary the car pulled forward with other workmen shoved and (1) was in a struck speed while to be violence warning plaintiff, (3) thereby, (2) notice o? without not and at a had no reason manner and time (4) movement, anticipate when such other expect or known, knew, care could have due employees or (5) doing negligence. their danger, and so position of so, that instructed, properly the mere fact jury was against being employees shoved these pushed and ear fall, causing does not entitle a verdict. him to plaintiff, attending conditions this act which de the circumstances It is City, Chicago v. St. negligence. Kansas & Louis termines its [Dean 408, 386, necessary 97 S. W. 199 Mo. These Co., Railroad 910.] conjunctive in the instruction and all stated elements are finding plaintiff. is, we There warrant proven must be support substantial evidence each and we do said, have heretofore agree that this instruction was erroneous for want of failure support allegation that this forward movement of the motor unnecessary force, speed car was “with and violence” or “without plaintiff” or “in a or notice or manner at a time when expect anticipate had no cause to such movement.” *12 case, if the the court in And such trial could not have erred is. refusing eliminating give separate withdrawal to the instructions jury’s any negligence. of such from elements of the consideration really ground negligence of and all There was but one stated these negligence required be in proven elements to to make of order wrong attempting entirely it. The defendant was in of grounds charging neg- petition to treat several distinct of the as ligence, any one of which could be severed from the others and jury’s a instance, from consideration. For failure eliminated the may movement not to warn of the intended of the motor negligence, was it in of itself as it that have shown constituted customary give command direction so and was not or to do warning. expected to act without .signal the workmen alleged ground negligence. a distinct A failure to warn is not of negligence, yet ap- was itself is a failure to not of it While warn timely if a and sufficient of the parent that given, been have intended movement of the ear had that would merely things was one negatived negligence. This of the which made negligence. a transaction as whole the complained the clause of instruction is also that this car, you “if movement telling jury further find that such of ordinary circumstances a failure to exercise any,
if under all the you defendant, are employees of then of other part on care jury gives guilty negligence,” of defendant instructed that go pleadings of both the speculate outside roving commission to however, clause, negligence. This follows finding in evidence in must precedes be read with what is connected movement, car,” when read in “such The words connection. it, mean a movement plainly precedes with what connection violence, made when force, speed unnecessary and. warning to notice or danger, and made without in line of plaintiff was not and a time when in a and at manner plaintiff and workmen and when such such movement expect no reason had danger. known, of When plaintiff’s position of knew, have or should by this jury been misled could have read, not believe we do so clause of instruction- the. plaintiff, evidence assigned on admission of Error is at the service, long experience being foreman of a section defend practice by' seniority system in injury, his under time of evident master. The -position of road promotion ant, in line on into jury take this consideration permit towas purpose objection question damages. pos- The is that of this was a mere quantum sibility, uncertain and remote enter into too however, in damages. not, mentioned the instruction on dam- It is only be to ages as element be considered and its effect would an promotion his chance jury to consider increase of allow the salary earnings estimating the of future because plaintiff’s in loss disability. every There is no doubt that normal man permanent doe-i ordinary and reasonable for ad- chances take into consideration consequent advantages salary promotion vancement and While working line work. the trial conditions court admitting along should exercise discretion evidence this line and issues, the‘jury raising why we collateral see no reason should avoid undisputed possession bearing of at least the facts put question. is’ reversible error shown here. There no assigned attorneys is Error one made im jury closing prejudicial argu statements to the in his proper exceptions bill recites that after ment. the instructions were argument following proceeded proceed *13 read to the ings were had: “By : (Attorney defendant) attorney for Plaintiff’s has Mann Mr. they right that
made the statement have the read between the Lollar, wink, a that aby get lines reach conclusion meant to gentleman job. object old and he wanted his argument to that as I improper and without foundation the evidence ask that making reprimanded argument. the counsel be for such an objection. “The court overruled this I jury ask discharged that the “By be from further Mr. Mann: argument. consideration this case because of the request by “This court refused. excepted Defendant ruling.” the court’s argued It is here argument plaintiff’s attorney adroitly intended be and was understood insinuating charging Lollar, that the witness fellow a plaintiff, workman of who charged having with winked and nodded to Sparks the workman signal forward, as a start did so knowing that injured designing would be so because Lollar wanted injure plaintiff vacancy as to a job so make in the of section fore- man, position seeking. which Lollar was plaintiff’s If attorney, for purpose influencing the mere prejudicing jury, made such insinuating prejudicial unjustified remarks fact, it should find, however, be condemned. We joined that defendant plain- proving tiff in that Lollar was the oldest man in service of this gang promotion section and was line for job to of foreman vacancy. in Case of a It also shown reason of the same seniority, act accustomed to Lollar was as substitute or straw boss
817 plaintiff’s .any cause, case absence for and that even when plaintiff was he present often as leader acted or straw boss in direct ing signaling the other men. their as to fact, movements. The particular therefore, that on this occasion Lollar winked or nodded to his fellow workmen to move the they forward when argument did facts for proper was one of the legiti in a way. not, however, proper mate plaintiff’s for attorney committing Lollar felony accuse for the purpose creating vacancy section foreman. Nor do we think the justifies this holding record here court in that plaintiff’s attorney court, this. trial did who heard the argument whole and over thereto, objection evidently ruled the did not think so. The record out, should, here as it plaintiff’s does not set what the attorney did argument say along in fact in his this line. All we know about it objection is making that in defendant’s attorney stated his con thought or what purport struction was the of plaintiff’s argu may judge ment. The trial well overruled objection have defendant’s plaintiff’s that what attorney the reason actually not, said did facts, objection under the whole sustain defendant’s thereto. The to show burden is on defendant argument to the error, jury constituted reversible and this has not been done here. Mining Co., v. Coal & 322 [Span Jackson-Walker Mo. 16 158, S. W. (2d) may say We 190, also that error would most likely 200.] verdict, an reflected in excessive and that is absent here. [Bobos Co., 224, 323 Packing Mo. 19 S. W. Krey (2d) 630, v. 634; Irons Exp. Co., Ry. 318, v. American Mo. S. 283,W. 292.] error, judgment Finding reversible no is Ferguson affirmed. Hyde, CC., concur. foregoing C., PER opinion by Sturgis, adopted CURIAM: The is *14 judges All court. concur. opinion as the Kresge Company Appellant, v. S. S. Zurich McEneny, Hazel Liability Company & (Zurich General Accident Insurance Company). (2d)W. 1067. S. Insurance August 24, One, 1933. Division