121 Mo. App. 466 | Mo. Ct. App. | 1906
Plaintiff was injured while engaged in sacking corn in a car standing on a side-track of defendant’s railroad and alleges that his injuries were caused by the negligence of defendant. He recovered judgment in the sum of $3,500 and defendant appealed..
Plaintiff filed a motion to dismiss the appeal on the ground that it was allowed at a later term of the circuit court than that at which the judgment was rendered and no notice of appeal was given by the appellant as required by the provisions of section 811, Revised Statutes 1899. It appears the cause was tried at the October term, 1903, of the circuit court and the verdict and judgment were for plaintiff. Defendant filed a motion for a new trial in proper' time but this motion was not heard until the following term when it was overruled and an appeal was allowed defendant by the circuit court at that term. The appeal therefore was taken under the provisions of sections 806, 807 and 808 of the statutes which relate to the allowance of appeals by the circuit court. Obviously section 811 refers only to appeals granted by the appellate courts by special order under the provisions of section 810 and not to appeals taken in the court where the judgment was rendered. The motion is overruled.
Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. A grain car loaded with corn had been hauled by defendant as a common carrier for hire from Kansas City to its station at Amoret for delivery to M. Reed, the
There is a conflict between the witnesses relative to the place where the car in the present case was set by defendant. Defendant’s agent testified that by direction of the consignee he had the car placed at the elevator door while the manager of the elevator testified that it was set to one side, for unloading into wagons. All agree that the unloading began on the 17th, and defendant’s agent states that on the morning of the 18th, in preparing his car report he observed the car was only partly unloaded. Plaintiff, a farmer, purchased of the consignee one hundred bushels of corn at about noon on the 18th, and agreed to take it from the car. He wished to sack the corn before loading it into his wagon and with permission of the consignee left his team and wagon standing at the west side of the elevator and went to work in the car sacking corn. At that time perhaps one-third of the load had been removed and a space had been cleared in the middle of the car. The outer doors
Shortly after plaintiff began work a north-bound freight train arrived and proceeded along the passing track. Plaintiff saw it through the open car door but being busy and in a hurry paid no attention to its movements. The train being scheduled to meet another at this point stopped on the passing track and proceeded to do some switching. During that operation the engine backed some cars on the unloading track and pushed them against the car in which plaintiff was at work. The impact was so severe that one of the suspended grain doors was shaken loose from one of its fastenings and swung downward striking plaintiff, who was in a stooping posture, a violent blow in the back that immediately rendered him unconscious and inflicted severe physical injuries upon him. Plaintiff had no warning of the movement of the freight engine that resulted in his injury. There is no evidence that defendant’s agent had actual knowledge of the presence of plaintiff in the car nor is there any evidence tending to show that it was a practice sometimes followed and known to defendant for corn to be sacked in cars preliminary to its unloading. It was shown that under the rules of defendant a consignee of a car of grain was allowed forty-eight hours after the delivery of the car in which to unload it.
Conceding for argument that defendant was required to exercise more than ordinary care before disturbing the car to ascertain if any one was in it at work what is there in the circumstance disclosed to indicate that it negligently failed to perform this duty? True the agent knew the corn had been but partly removed and that men would have to work there in completing its removal but at the time in question it was customary for men so' employed to be at lunch and there was no visible sign of activity about- the car. A wagon would have been at its west door if the work of shoveling loose grain into wagons had been progressing and its presence there would have advised the agent of the probability that some one was in the car. Had it appeared that even occasionally corn had been sacked in the car before unloading with defendant’s knowledge, the agent in the exercise of the degree of care demanded by the situation should not have contented himself , with acting on the absence of visible signs of occupancy, but should have investigated enough to inform himself of the actual situation.
But in the entire absence of evidence tending to show that corn at times was sacked in the car before unloading it would be unreasonable to say the agent should have anticipated the possibility of such occurrence in this particular case. We are dealing with a question of negligence. The burden is on plaintiff to show by reasonable inference from the facts adduced that defendant failed to take a precaution prudence would have suggested to an ordinarily careful person in that situation. To say that the agent should have thought of and guarded against a mere possibility out of the course of known events would be to require of him the exercise of a degree of foresight and prudence not to be expected of the ordinarily prudent person.