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manner to endanger their safety without giving them warning of such intended move ment. Without going into the details of the petition we hold it is sufficient to support the verdict and judgment and pass to the consideration of the demurrers to the evidence, taking up, first, the demurrer of the Pullman Company.

[2] Plaintiff was the servant of the Pullman Company, engaged in her master's work which she was performing in the proper place and manner. She was in a position where a sudden and unexpected movement of the car would imperil her safety, and where she was utterly helpless and unable to protect herself. She was compelled to depend on the care of others for her safety, and it was the duty of her master in discharging its obligation to exercise reasonable care to provide its servant with a reasonably safe place in which to work, to adopt reasonable means to prevent the car from being moved while she was in a position so dangerous. Scanlon, the foreman, knew that three of the cars belonging to the train were absent, and might be switched in at any

time.

Further he knew that such occurrence was so infrequent that plaintiff would not be looking for it, and that she might be in a position of utter helplessness and danger. He had no control over the movement of cars by the railroad company, but he did have opportunity and means for protecting his servant either by flagging the cars on which the cleaners were working or by keeping a lookout for the missing cars and giving timely warning to his servants of their approach. In attempting to cast the whole burden of the duty he owed his servants onto the employés of the railroad company, Scanlon was guilty of a negligent breach of duty for which the Pullman Company should be held to respond in damages. The demurrer of that company was properly overruled.

[3] Plaintiff was not the servant of the railroad company, and, of course, was not subject to the orders of that company, except such orders as were approved and adopted by her master for her guidance and protection, but she was on the property of the railroad company, not as a trespasser or licensee by sufference, but as an invitee, or, as we said in Nelson v. Railroad, 132 Mo. App. loc. cit. 694, 112 S. W. 1017, as a licensee by invitation. The railroad company owed her the same duty it owed its cleaners. Knowing that she was at work in one of the sleeping cars and might be in a place of danger, it had no right to move the train without giving her warning and without first ascertaining that she was not in a dangerous place in the car. It was doing an unusual thing, knew that the cleaners would not be anticipating such movement, and it had no more right to depend entirely on the

care of Scanlon for their protection than he had to rely on the care of the trainmen. Each defendant owed the cleaners a duty, both were recreant, and neither should be heard to excuse itself on the plea that the other was at fault. The court did not err in overruling the demurrer to the evidence offered by the railroad company.

The objections urged against the rulings of the court on instructions have been examined and are ruled against the defendants. The instructions are too long and include unnecessary details in their hypotheses, but we do not find them misleading or confusing, and believe that a jury composed of men of ordinary intelligence would understand them. They are free from prejudicial error.

Finally, it is urged that the verdict, which The objection was for $2,250, is excessive. is based on the evidence of defendants. Evidence of plaintiff of a substantial character discloses injuries for which the award of damages made by the jury would be small compensation.

The issue of the extent of the injuries is presented by all the evidence as one of fact, and we cannot say that the jury exceeded reasonable bounds. The judgment is affirmed. All concur.

TETWILER, Public Adm'r, v. ST. LOUIS, I. M. & S. RY. CO. (Springfield Court of Appeals. Missouri. April 7, 1913. Rehearing Denied May 5, 1913.)

COURTS (§ 91*)-RULES OF DECISION. The Court of Appeals must defer to the opinion of the Supreme Court upon the same evidence in a former appeal of the same cause.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 313, 325, 326; Dec. Dig. § 91.*] Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Charles Tetwiler, public administrator, in charge of the estate of Thomas Allen, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. T. Railey, of St. Louis, and N. A. Mozley, of Bloomfield, for appellant. David W. Hill, of Poplar Bluff, for respondent.

ROBERTSON, P. J. This action to recover damages on account of the death of Thomas Allen was instituted by the public administrator of Butler county, Mo., who was in charge of his estate, and has been tried in the circuit court twice. At the first trial the verdict of the jury was for the defendant and the plaintiff appealed to the Supreme Court, which reversed the judgment and remanded the cause for a new trial. The opinion is in 242 Mo. 178, 145 S. W. 780, where a statement of the facts as disclosed at the first trial may be found. Upon the second trial the jury returned a verdict in favor of

the plaintiff for $5,000, and the defendant | alighting from a moving engine, the refusal of has appealed to this court.

In the second trial of the case the testimony of David Sheets taken at the first trial and preserved in the bill of exceptions was again submitted to the jury, so also was the testimony of several other witnesses; hence, the chief testimony upon which the Supreme Court considered the case is yet present verbatim in the record submitted here.

an instruction properly defining the duty of the master and servant in the furnishing and ror, where the jury was clearly instructed as handling of appliances was not reversible erto defendant's duty to exercise ordinary care and diligence in furnishing appliances, and that, if plaintiff was guilty of contributory negligence, he could not recover.

Dig. 88 705-713, 715, 716, 718; Dec. Dig. § [Ed. Note.-For other cases, see Trial, Cent. 296.*]

APPEAL AND ERROR (§ 877*) — INSTRUCTIONS-RIGHT TO EXCEPT.

A party cannot except to the refusal of instructions requested by the adverse party. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.*]

3. MASTER AND SERVANT (§ 278*)-ACTIONS FOR INJURIES-SUFFICIENCY OF EVIDENCE.

In addition to what is stated in the opin-2. ion of the Supreme Court as to the facts, we note that some of the witnesses testified that the space between the cars referred to therein was opened up for the express purpose of allowing the employés to pass through, and that when the deceased started to enter this opening the cars were standing still. The engineer on the second trial testified as follows: "Q. Now, this opening there was neces sary for the repair men and engine men to get through there and use their shanty, and have a place to get through, wasn't it? A. How is that? Q. That opening was necessary for these men to use it? A. Oh, sure; when it was done, there, it was necessary for them to use it."

The engineer testified that previous to the time he moved his engine which caused the accident he had been standing still for two or three minutes; that he saw the torches carried by the deceased and his partner, Sheets; that when he last saw them "they were right at the opening, going westward." The engineer also testified that the deceased and his partner, Sheets, could have walked from their starting point to the opening in about two minutes, and as he testified that he had been standing still for about three minutes previous to the time when he last saw the men, the jury may well have presumed that the engine was not in motion at the time when the deceased started to enter the opening. It is admitted by the engineer that no signal was given when he moved the engine.

As stated in the opinion of the Supreme Court, we are unable to ascertain how the deceased could have determined when a safer opportunity would have presented itself for passing through the opening than the one which he selected.

We do not have the authority to overrule the Supreme Court in this case, neither have we, under the facts disclosed by the record, the inclination to criticize that opinion.

The judgment of the trial court is affirmed. All concur.

RHEA v. MISSOURI PAC. RY. CO.
(Springfield Court of Appeals. Missouri.
April 7, 1913. Rehearing Denied
April 26, 1913.)

1. TRIAL (§ 296*)-ACTIONS FOR INJURIES—
INSTRUCTIONS-CURE BY OTHER INSTRUC-

TIONS.

In a railroad fireman's action for injuries caused by a grabiron giving way while he was

In a railroad fireman's action for injuries caused by a grabiron giving way because of the loss of a set screw when he was alighting from a moving engine which had just left the roundhouse where it had been left for inspecthat the set screw was not in place when the tion, evidence held to justify the jury in finding engine left the roundhouse, and that this fact might have been discovered by reasonable care and inspection.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]

4. NEGLIGENCE (§ 134*) - SUFFICIENCY OF EVIDENCE.

Proof of negligence is not conjectural, where it is established by facts from which a logical inference may be drawn that the defects complained of caused the accident.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. 88 267-270, 272, 273; Dec. Dig. § 134.*]

5. MASTER AND SERVANT (§ 231*)-LIABILITY FOR INJURIES-APPLIANCES.

As it is the master's continuing and ever present duty to use ordinary care to furnish reasonably safe appliances, and to keep them in proper repair so far as it can be done by inspection, in the absence of knowledge of a the exercise of ordinary care, diligence, and defect brought home to the employé, he has a right to rely upon the master performing such duty.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 675-677; Dec. Dig. § 231.*]

6. MASTER AND SERVANT (§ 278*)-INJURY TO SERVANT-SUFFICIENCY OF EVIDENCE.

caused by a grabiron giving way while he was In a railroad fireman's action for injuries alighting from a moving engine owing to the loss of a set screw, where there was no direct evidence that the set screw was in place when the engine left the roundhouse where it had been inspected, but there were facts from which this could be inferred, the rule that where an injury may have resulted from one of two causes, for one of which only the defendant is liable, plaintiff must show with reasonable certainty that the cause for which defendant is liable produced the result, and cannot recover if the evidence leaves it to conjecture did not apply; it being uncontroverted that the cause of the fall was the giving way of the grabiron.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

7. Master and Servant (§ 238*)—LIABILITY FOR INJURIES-CONTRIBUTORY NEGLIGENCE SELECTING UNSAFE METHODS OF WORK. Where a servant of his own free will chooses an unsafe manner of doing his work or using his employer's appliances when other and safer ways are at hand, he may still recover for the injury, unless the way chosen was so dangerous that an ordinarily prudent person would not have undertaken it as he did.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 681, 743-748; Dec. Dig. § 238.*]

It appears from the evidence that Earl E. Rhea was in the employ of the defendant railway company as a fireman on one of its engines running between Kansas City and Joplin, and that on November 20, 1910, at about noon, he reached Joplin, and went to his room and slept until 5 or 6 o'clock in the afternoon, and then, according to the custom of the defendant's firemen, went to defendant's roundhouse in the discharge of his duty as fireman to look after the engine on 8. MASTER AND SERVANT (§ 289*)-LIABILITY which he would make the night run to KanFOR INJURIES-CONTRIBUTORY NEGLIGENCE sas City; his duty in that particular was to -SELECTING UNSAFE METHODS OF Work. see that the lamps were properly oiled, and Whether a railroad fireman injured by the that the steam had been properly gotten up giving way of a grabiron while alighting from an engine was negligent in attempting to alight in the engine before starting on the trip; from an engine running at from four to six that in attending to those duties at the miles an hour at a street crossing which was roundhouse he climbed up into the engine smooth and even, he having no knowledge that the grabiron was unsafe, was a question for cab and down to the ground again some five the jury, since reasonable minds might differ or six times, and in doing so used the "grabas to whether an ordinarily prudent person iron" or "handhold" on which the interest under similar circumstances would have act-in this case centers. There were two of the ed as he did. grabirons, one attached to the engine and one to the tender, and they were placed there by the defendant for the use of its employés in climbing upon and getting down from the cab of the engine. It appears that A rule of a railroad company prohibiting the engine was taken in charge by the hostler trainmen from getting off and on trains when and his helper, their duty being to back the "in too rapid motion" was not violated by a engine from the roundhouse to the defendfireman who alighted from an engine while run-ant's station near Main street in the city of ning from four to six miles an hour, unless an ordinarily prudent man would not have done so, since the rule implied that employés may get on or off trains when moving under conditions and circumstances that were apparently

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

9. MASTER ADN SERVANT (§ 243*)—LIABILITY FOR INJURIES-CONTRIBUTORY NEGLIGENCE -VIOLATION OF RULE.

safe.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 682, 759-775; Dec. Dig. § 243.*]

10. MASTER AND SERVANT (§ 232*)-LIABILITY FOR INJURIES-SCOPE OF EMPLOYMENT. It was a railroad fireman's duty to go to the roundhouse and prepare his engine for his trips, and it was customary for him and other firemen to ride from the roundhouse to the station where within a few minutes the engine would be turned over to the regular engineer and fireman in the engine then in the custody of a hostler. While so riding to the station plaintiff attempted to alight for the purpose of going to a nearby lunchroom for a cup of coffee, and was injured by a grabiron giving way. Held that, while in alighting from the engine he was doing no act necessary to be done for the company, he did not voluntarily leave his employment or use the grabiron for a purpose for which it was not intended, so as to relieve the company of liability for his injuries.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 678-680; Dec. Dig. § 232.*]

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Earl E. Rhea against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This was a suit for damages for personal injuries. The plaintiff recovered judgment, and defendant has appealed.

Joplin, and that at the time of plaintiff's injury the engine was in full control of the hostler and his helper. The train was scheduled to leave Joplin at 7:15 p. m. After plaintiff had attended to his duties at the roundhouse, according to his custom as well as that of other firemen of the defendant company, he rode on the engine from the roundhouse toward the station where the hostler and his helper would deliver control of the engine to the regular engineer and fireman. The plaintiff had no duties to perform in taking the engine from the roundhouse to the station. He rode for a time in the seat ordinarily used by the fireman, but which, on the trip from the roundhouse to the station was the seat of the hostler's helper. Soon after the engine started on its trip from the roundhouse to the station, plaintiff arose from the seat and stood in the gangway between the engine and tender, and took hold of the grabirons. This position made him face the hostler with whom he distance of 100 or 150 feet he stood in that was talking. The evidence shows that for a position with his hands on the grabirons, and that as the engine approached Main street he stepped down to the bottom step of the engine, still holding to the grabirons, and that just as the engine came to Main street, and as it was traveling from four to six miles an hour, he attempted to alight for the purpose of going to a lunchroom for a cup of coffee. He released his hold on the grabiron on the tender and swung out to

alight, holding to the grabiron on the engine with his left hand; this grabiron turned and fell out, and plaintiff fell upon the track, and one of his feet was run over and cut off by a wheel of the engine. The hostler did not know the plaintiff had been injured until he had run the engine on back some 50 or 75 feet to its regular stopping place at the station. The grabiron was found on the ground, and was picked up and laid in the cab of the engine.

This grabiron on the engine is a long fron bar, extending from the back of the cab at about the height of a man's head who would

be standing in the gangway, down to a point about even with the floor of the gangway. At the top, it is straight, and is held in place by two sockets through which it passeseye sockets or rings go around the bar and hold it in place and in the top eye socket there is a set screw which holds the bar solid and firm. At the bottom the bar curves in toward the engine and fits into a socket, and the socket at the lower end and the set screw at the top eye socket keep the grabiron solid and secure in its place. A photograph of that part of the engine, which was exhibited to the jury, is here reproduced:

[graphic][subsumed]

The defendant company has a rule that all engines must be inspected in the roundhouse at their terminals. The proof in this case is that, while there was no regular inspector kept at Joplin by the defendant, the engines were inspected by boilermakers and mechanics who worked in and about the roundhouse. The defendant also has a rule prohibiting trainmen from getting off and on trains. when they are in too rapid motion.

The negligence charged in the plaintiff's petition is that the defendant carelessly and negligently suffered, allowed, and permitted | the set screw which passed through the top eye socket and which held the grabiron firmly and securely in its proper place and position to be lost out and gone therefrom, and that by a failure to make proper and timely inspection the defendant was guilty of negligence, and that the appliance was out of repair for such a length of time that the defendant knew or could have known by the exercise of ordinary care and inspection that the set screw was gone and the appliance unsafe.

The defendant denies its negligence, and contends that the evidence fails to disclose the loss of the screw or the defective condition for such a length of time before the injury as to have allowed the defendant to have discovered it and remedied it; and further contends that plaintiff cannot recover because of his own negligence in electing to alight from the engine at the time he did and for the purpose testified to when he could have waited until the engine had gone 75 or 100 feet farther, and alighted when it would have been standing still. Defendant disclosed its theory of the case by offering and standing upon a peremptory instruction presented at the close of the plaintiff's evidence, and refusing to introduce any evidence in its own behalf.

proper, the failure to give it in the presence of all the instructions which were given does not constitute reversible error. Moreover, a party cannot except to the opinion of the court refusing instructions to the jury moved by the adverse party. Bailey v. Campbell, 2 Ill. (1 Scam.) 47.

[3] The appellant contends that the evidence in this case discloses a state of facts from which the defendant would not and could not have known of the defect, namely, that the set screw was gone, for a sufficient length of time to charge it with notice, and that it was erroneous to submit that question to the jury, and therefore defendant's proffered peremptory instruction should have been given.

[4] In support of this position, appellant urges the doctrine laid down in the case of Glasscock v. Dry Goods Co., 106 Mo. App. 657, 80 S. W. 364, and other cases cited in the brief declaring the same rule. As a first consideration, that case turned upon the question of contributory negligence, as the final point in the opinion fully discloses. However, the court in that case does lay down a rule which is applicable here, to wit: Proof of negligence is not conjectural where established by facts from which a logical inference may be drawn that the defects caused the accident. In the Glasscock Case the opinion shows that the break in the rope did not come about by gradual wear and tear, but was such as would be made when a sudden force was applied to the rope, it being too short-having been tied before the accident-of which defendant had no knowledge in time to have remedied it. In the case before us appellant argues that because plaintiff climbed up and down five or six times within 30 minutes of the time of the injury, and stood holding to the grabiron while riding toward the station and discovR. T. Railey, of St. Louis, H. W. Tim-iron, the only reasonable inference that could ered nothing wrong or loose about the grabmonds, of Lamar, and Scott & Bowker, of be drawn is that the set screw had not come Nevada, Mo., for appellant. Stivers & Morris and W. W. Calvin, all of Kansas City, such a period of time prior to the injury out of the eye socket, or was not out for and Edwin L. Moore, of Lamar, for respond- that defendant would have or could be charged with knowledge of the defect in time to have remedied it. In the Glasscock Case the FARRINGTON, J. (after stating the facts elevator had been running all morning and as above). [1, 2] The appellant (defendant) the rope subjected to exactly the same strain excepted to the action of the trial court in as was exerted upon it when it broke, whererefusing plaintiff's instruction numbered 2, as in this case there is no evidence that the which defines the duty of the master and grabiron had been subjected to the same servant in the furnishing and handling of strain by the plaintiff or any one else withappliances. This instruction was proper and in such short time before the injury occurmight well have been given; but the instruc- red. True, there is evidence that plaintiff tions which were given clearly instructed the climbed up and down five or six times while jury concerning the duty of the defendant the engine was standing in the roundhouse, to exercise ordinary care and diligence in and that he had his hand on this grabiron furnishing the appliance, and instructed that, a moment before getting down upon the lowif they should find that the plaintiff was er step to swing off; but from the construcguilty of contributory negligence in the man- tion of this appliance, the picture of which ner in which he alighted, they should find was before the jury, it could reasonably be for the defendant. While the instruction inferred that the force applied to it in go

ent.

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