Wilson v. United Railways Co., 142 Mo. App. 676

142 Mo. App. 676 | Mo. Ct. App. | 1909

GOODE, J.

This plaintiff! was hurt while working at his task as an employee of defendant company and brought this action to recover damages. He was helping move a carload of ties at the time. The car had been run on a spur track to be loaded with ties, and was stopped at a short depression in the track which caused the rear end to be lower than the front, and the car stood tilted. It was a flat car about thirty-six feet long and nine feet wide. The ties were seven feet long and perhaps six inches thick and were placed lengthwise across the car. At the west or rear end were braces against which the ties rested, but there were no braces at the front. At that end was what is called a vestibule, containing the controller and other appliances used in operating the trolley car. We understand a full load of ties, or two hundred and fifty, would have extended the load forward to where it would be supported by braces connected with the vestibule. The car was started before it was fully loaded, there being but two hundred, and thirty-two ties on it, leaving a space four feet wide between the front end of the load and the vestibule. The testimony differs as to the manner in which the front end of the pile was built up. The proper manner, according to the witnesses,. Avould have been to “step the ties;” that is, have them ascend like stairs, the first tie of each layer from the bottom retreating the width of one tie. The testimony for plaintiff goes to show this was not done, but the load was built up perpendicularly in front; whereas the witnesses for defendant testified it was “stepped.” The pile remained in position as long as the car was stationary with its rear lower than the front; but when it started the motorman ran it very rapidly and after leaving the spur and as plaintiff was in the act of reversing the trolley so the car would move in another direction, the pile of ties gave way at the front end, letting him fall to the floor and falling on him, breaking his left ankle and inflicting other injuries. It is conceded plaintiff was performing his duty at the time and was not out of place on top of the pile; in fact, he had to climb there to manipulate the trolley. But it is contended he caused the pile of ties to topple and fall by carelessly stepping on those right at the end of the pile, and, perhaps, an inference of negligence on his part which contributed to the injury, might have been drawn by the jury from the evidence. This defense was interposed by answer, and also that plaintiff assumed the risk.

The acts of negligence assigned in the petition are failure of defendant’s foreman in charge of the work to cause the pile of ties to be blocked or fastened at the front so as to prevent them from falling; ordering the car to be moved while in a negligent condition, by which Ave understand the pleader to mean, before the load was complete or braced, and in ordering plaintiff to go on the car and ties and operate the trolley while the pile Avas negligently unbraced.

The court refused to direct a verdict for defendant as requested, and in this no error was committed; for it is certain plaintiff was not conclusively shown to have been careless in a way that helped bring about the accident, and neither did he assume the risk of injury from the ties having been piled carelessly add insecurely and the car being moved by the direction of the foreman while they were piled thus. The work of loading the ties Avas done under the eye of the foreman and plaintiff Avas obeying his command when hurt; therefore there can be no question about defendant being in fault if the ties were carelessly built up and in a way to endanger plaintiff unnecessarily. But it is argued if the pile was perpendicular, as he said, the danger was obvious and he took the risk. This point need not be elaborated for it is settled by Wendler v. House Fur. Co., 165 Mo. 527, Curtis v. McNair, 173 Mo. 270, and Blundell v. Elevator Co., 189 Mo. 552. The case of Hager v. Railroad, 207 Mo. 302, is invoked as having altered the rule iu regard to the assumption of the risk, but it does not alter it in a manner relevant to the present case, if at all. The fact which suffices to distinguish this controversy from that one is that it was not incumbent on defendant to move the car in question while it was in an insecure and dangerous condition and plaintiff was not engaged by defendant to assist in any such work; whereas the court found from the evidence in the Hager case it was the duty of the Terminal Association and its employees to remove and transfer cars whether said cars were in good or bad order (1. c. 316). We understand it was part of Hager’s regular employment to work about cars in bad order, and presumably more unsafe than those in good order.

The judgment must be reversed because in the first and main instruction for plaintiff, after the different acts of negligence had been hypothesized, the jury was required to find they occurred “thereby directly contributing to cause plaintiff’s said injuries,” instead of finding those acts caused the injuries. As the defense of contributory negligence was in the case and there was no evidence to prove the accident was in any degree the intervening act of a third person, or of a force of nature, this form of instruction falls within the decisions of Hof v. Transit Co., 213 Mo. 445, and Krehmeyer v. Transit Co., 120 S. W. 78.

The judgment is reversed and the cause remanded.

All concur.