288 S.W. 13 | Mo. | 1926
In compliance with our writ of certiorari directed to the judges of the St. Louis Court of Appeals there is before us the record in the case of Russell Harrison, plaintiff, v. American Car Foundry Company, defendant. The facts are thus stated in respondents' opinion handed down in this case on February 2, 1926:
"It appears that while plaintiff and three other persons were working under the direction of defendant's foreman, Frank Reid, in unloading billets from a car, the defendant's foreman directed them to drop a steel rail while they were in a space about four and one-half feet wide and about twenty-five feet long. It appears that there was not sufficient room between these two piles of billets, where these laborers had started to erect another pile, to lay them down, and they were directed by the foreman to drop this rail because of the insufficient room to lay it down. The rail which the four men were carrying was about twenty feet long and weighed about seven hundred pounds. The men were carrying this rail between the two piles of billets in order to make preparations for assembling another pile of billets. The south end of the rail, where two of the laborers were, was out in the driveway, and these two laborers had plenty *1232 of room to perform their work, but plaintiff and his co-laborer on the north end of the rail did not have the room that the other two had. Plaintiff's co-laborer changed from the opposite side to the same side where plaintiff was, and was then told by defendant's foreman to drop the rail. The rail struck another rail lying there, bounded and caught plaintiff's foot. Plaintiff testified: `When the rail hit my foot my foot turned upside down and my foot busted.' Plaintiff said there was not enough room to get out of the way."
The case originated before a justice of the peace in the city of St. Louis, and as to the pleadings there filed the opinion reads:
"The petition alleges that plaintiff was injured on the 13th day of August, 1920, while carrying a steel rail and while in the act of throwing the said rail on the ground, the rail when thrown striking another rail, which caused the rail which was thrown to the ground to bound and strike plaintiff's foot. The negligence alleged is that defendant `failed to furnish this plaintiff with a reasonable and safe place to work in, to-wit, that in and about the premises of this defendant were left lying on the ground other rails and iron and steel.' Plaintiff also alleges that defendant's foreman was guilty of negligence in directing the plaintiff and other employees who were carrying the rail to drop or throw the said rail upon and against another rail, when he knew, or by the exercise of ordinary care could have known, that it was likely to rebound and strike and injure the plaintiff."
From the foregoing it clearly appears that plaintiff did not content himself with an effort, if such it was, to charge defendant with negligence in failing to furnish plaintiff a reasonably safe place in which to work. He chose to go further and specifically stated the acts of negligence upon which he relied as follows (italics ours), "that in and about thepremises of this defendant were left lying on the ground otherrails and iron and steel," and "that defendant's foreman was guilty of negligence in directing the plaintiff and other employees who were carrying the rail to drop or throw the saidrail upon and against another rail, when he knew, or by the exercise of ordinary care could have known, that it was likely to rebound and strike and injure the plaintiff." Such pleading constituted a specification of particular acts of negligence. [Lyman v. Dale, 262 Mo. l.c. 358; Rice v. White, 239 S.W. 141, l.c. 144, and cases cited.] Having elected to state specifically his grounds of negligence in the justice court plaintiff was bound thereby. We so held in Lyman v. Dale, supra, and thus stated the doctrine: "It is true that in justices' courts the same strict formalities of pleadings are not required as in the circuit court, but it is further true that, if the plaintiff elects to plead in strictness in such court, he is bound by his pleadings there as he would be elsewhere. By this we mean, if he is suing in tort, *1233 and specifically states the negligence upon which he relies to recover, he must recover for that negligence and none other."
It further appears from the opinion that respondents not only hold that in plaintiff's petition "there is no specific averment of negligence," but that "the petition charges defendant with failing to furnish plaintiff a reasonably safe place to work, and also negligent order on the part of defendant's foreman;" that (italics ours) "the evidence discloses plaintiff was ordered and directed to do this work in a place too narrow to perform the work in a safe way; that the foreman directed plaintiff and theother employees to drop the rail, and in obedience to this direction plaintiff and the other employees did drop the same and plaintiff sustained his injury," and that (italics ours) "theforeman ordered him to drop the rail and he dropped it upon another which was lying there." The opinion thus finds no evidence supporting either ground of negligence specifically pleaded, and shows no causal connection under the pleadings between the command actually given and the injury received. It sets up a general ground of negligence which plaintiff, having chosen to plead specially, did not plead, and upon which he was evidently unwilling to rely, to-wit, defendant's failure to furnish plaintiff a reasonably safe place in which to work, found that the evidence supported this substituted pleading and thereupon held defendant liable. These rulings manifestly bring the opinion in conflict with the doctrine above quoted and clearly stated in a controlling decision of this court, namely Lyman v. Dale, supra.
For the reasons above stated it is ordered that the opinion and judgment under review and that portion of the record containing the same be quashed. All concur, except Graves, J., absent.
