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manner to endanger their safety without care of Scanlon for their protection than he giving them warning of such intended move had to rely on the care of the trainmen. inent. Without going into the details of the Each defendant owed the cleaners a duty, petition we hold it is sufficient to support both were recreant, and neither should be the verdict and judgment and pass to the heard to excuse itself on the plea that the consideration of the demurrers to the evi. other was at fault. The court did not err in dence, taking up, first, the demurrer of the overruling the demurrer to the evidence ofPullman Company.

fered by the railroad company. [2] Plaintiff was the servant of the Pull- The objections urged against the rulings of man Company, engaged in her master's work the court on instructions have been examinwhich she was performing in the proper ed and are ruled against the defendants. place and manner. She was in a position The instructions are too long and include where a sudden and unexpected movement unnecessary details in their hypotheses, but of the car would imperil her safety, and we do not find them misleading or confusing, where she was utterly helpless and unable and believe that a jury composed of men of to protect herself. She was compelled to de- ordinary intelligence would understand them. pend on the care of others for her safety, They are free from prejudicial error. and it was the duty of her master in dis

Finally, it is urged that the verdict, which charging its obligation to exercise reasonable was for $2,250, is excessive. The objection care to provide its servant with a reason is based on the evidence of defendants. Evi. ably safe place in which to work, to adopt dence of plaintiff of a substantial character reasonable means to prevent the car from discloses injuries for which the award of being moved while she was in a position so damages made by the jury would be small dangerous. Scanlon, the foreman, knew that

compensation. The issue of the extent of three of the cars belonging to the train were the injuries is presented by all the evidence absent, and might be switched in at any as one of fact, and we cannot say that the time. Further he knew that such occurrence

jury exceeded reasonable bounds. was so infrequent that plaintiff would not

The judgment is affirmed. All concur. 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 TETWILER, Public Adm'r, v. ST. LOUIS, by the railroad company, but he did have

I. M. & S. RY. CO. opportunity and means for protecting his (Springfield Court of Appeals. Missouri. April servant either by ilagging the cars on which

7, 1913. Rehearing Denied the cleaners were working or by keeping a

May 5, 1913.) lookout for the missing cars and giving COURTS (§ 91*)-RULES OF DECISION. timely warning to his servants of their ap- opinion of the Supreme Court upon the same

The Court of Appeals must defer to the proach. In attempting to cast the whole evidence in a former appeal of the same cause. burden of the duty he owed his servants on- [Ed. Note.-For other cases, see Courts, to the employés of the railroad company, Cent. Dig. 88 313, 325, 326; Dec. Dig. $ 91.*] Scanlon was guilty of a negligent breach of Appeal from Circuit Court, Butler County; duty for which the Pullman Company should J. C. Sbeppard, Judge. be held to respond in damages. The demur- Action by Charles Tetwiler, public adminrer of that company was properly over- istrator, in charge of the estate of Thomas ruled.

Allen, deceased, against the St. Louis, Iron [3] Plaintiff was not the servant of the Mountain & Southern Railway Company. railroad company, and, of course, was not From a judgment for plaintiff, defendant apsubject to the orders of that company, ex- peals. Affirmed. cept such orders as were approved and adopt- R. T. Railey, of St. Louis, and N. A. Mozed by her master for her guidance and pro-ley, of Bloomfield, for appellant. David W. tection, but she was on the property of the Hill, of Poplar Bluff, for respondent. railroad company, not as a trespasser or licensee by sufference, but as an invitee, or, ROBERTSON, P. J. This action to reas we said in Nelson v. Railroad, 132 Mo. cover damages on account of the death of App. loc. cit. 694, 112 S. W. 1017, as a licen- Thomas Allen was instituted by the public see by invitation. The railroad company administrator of Butler county, Mo., who was owed her the same duty it owed its cleaners. in charge of his estate, and has been tried in Knowing that she was at work in one of the the circuit court twice. At the first trial the sleeping cars and might be in a place of verdict of the jury was for the defendant danger, it had no right to move the train and the plaintiff appealed to the Supreme without giving her warning and without Court, which reversed the judgment and refirst ascertaining that she was not in a manded the cause for a new trial. The opindangerous place in the car. It was doing an ion is in 242 Mo. 178, 145 S. W. 780, where a unusual thing, knew that the cleaners would statement of the facts as disclosed at the not be anticipating such movement, and it first trial may be found. Upon the second had no more right to depend entirely on the 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.

an instruction properly defining the duty of In the second trial of the case the testi- the master and servant in the furnishing and mony of David Sheets taken at the first trial ror, where the jury was clearly instructed as

handling of appliances was not reversible erand preserved in the bill of exceptions was to defendant's duty to exercise ordinary care again submitted to the jury, so also was the and diligence in furnishing appliances, and that, testimony of several other witnesses; hence, if plaintiff was guilty of contributory negli

gence, he could not recover. the chief testimony upon which the Supreme Court considered the case is yet present ver- Dig. 88 705–713, 715, 716, 718; Dec. Dig. $

(Ed. Note.-For other cases, see Trial, Cent. batim in the record submitted here.

296.*] In addition to what is stated in the opin- 2. APPEAL AND ERROR (8 877*) - INSTRUCion of the Supreme Court as to the facts, we

TIONS_RIGHT TO EXCEPT. note that some of the witnesses testified that A party cannot except to the refusal of inthe space between the cars referred to there-structions requested by the adverse party. in was opened up for the express purpose of [Ed. Note. For other cases, see Appeal and allowing the employés to pass through, and Error, Cent. Dig. 88 3560–3572; Dec. Dig. 8 that when the deceased started to enter this

877.*] opening the cars were standing still. The 3. MASTER AND SERVANT ($ 278*)-ACTIONS engineer on the second trial testified as fol

FOR INJURIES-SUFFICIENCY OF EVIDENCE.

In a railroad fireman's action for injuries lows: "Q. Now, this opening there was neces.

caused by a grabiron giving way because of sary for the repair men and engine men to the loss of a set screw when he was alighting get through there and use their shanty, and from a moving engine which had just left the have a place to get through, wasn't it? A. roundhouse where it had been left for inspec

tion, evidence held to justify the jury in finding How is that? Q. That opening was neces

that the set screw was not in place when the sary for these men to use it? A. Oh, sure; engine left the roundhouse, and that this fact when it was done, there, it was necessary might have been discovered by reasonable care for them to use it."

and inspection. The engineer testified that previous to the

[Ed. Note.-For other cases, see Master and time he moved his engine which caused the Servant, Cent. Dig. $$ 954, 956-958, 960–969, accident he had been standing still for two 971, 972, 977; Dec. Dig. S' 278.*] or three minutes; that he saw the torches 4. NEGLIGENCE (8 134*) - SUFFICIENCY OF

EVIDENCE. carried by the deceased and his partner,

Proof of negligence is not conjectural, Sheets; that when he last saw them "they where it is established by facts from which a were right at the opening, going westward.” logical inference may be drawn that the deThe engineer also testified that the deceased fects complained of caused the accident. · and his partner, Sheets, could have walked [Ed. Note.-For other cases, see Negligence, from their starting point to the opening in Cent. Dig. $8 267–270, 272, 273; Dec. Dig. 5

134.*] about two minutes, and as he testified that he had been standing still for about three 5. MASTER AND SERVANT ($ 231*)-LIABILITY

FOR INJURIES-APPLIANCES. minutes previous to the time when he last

As it is the master's continuing and ever saw the men, the jury may well have pre- present duty to use ordinary care to furnish sumed that the engine was not in motion at reasonably safe appliances, and to keep them the time when the deceased started to enter in proper repair so far as it can be done by the opening. It is admitted by the engineer inspection, in the absence of knowledge of a

the exercise of ordinary care, diligence, and that no signal was given when he moved the defect brought home to the employé, he has a engine.

right to rely upon the master performing such As stated in the opinion of the Supreme duty. Court, we are unable to ascertain how the de [Ed. Note.-For other cases, see Master and ceased could have determined when a safer Servant, Cent. Dig. $8 675–677; Dec. Dig. $

231.*] opportunity would have presented itself for passing through the opening than the one 6. MASTER AND SERVANT (278*)-INJURY TO which he selected.

SERVANT-SUFFICIENCY OF EVIDENCE. We do not have the authority to overrule caused by a grabiron giving way while he was

In a railroad fireman's action for injuries the Supreme Court in this case, neither have alighting from a moving engine owing to the we, under the facts disclosed by the record, loss of a set screw, where there was no direct the inclination to criticize that opinion.

evidence that the set screw was in place when

the engine left the roundhouse where it had The judgment of the trial court is affirm- been inspected, but there were facts from ed. All concur.

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 de

fendant is liable, plaintiff must show with reaRHEA V. MISSOURI PAC. RY. CO.

sonable certainty that the cause for which de(Springfield Court of Appeals. Missouri. fendant is liable produced the result, and canApril 7, 1913. Rehearing Denied not recover if the evidence leaves it to conApril 26, 1913.)

jecture did not apply; it being uncontroverted 1. TRIAL (8296*)-ACTIONS FOR INJURIES– of the grabiron.

that the cause of the fall was the giving way INSTRUCTIONS - CURE BY OTHER INSTRUCTIONS.

[Ed. Note.-For other cases, see Master and In a railroad fireman's action for injuries Servant, Cent. Dig. 88954, 956–958, 960–969, caused by a grabiron giving way while he was 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 It appears from the evidence that Earl E.

FOR INJURIES-CONTRIBUTORY NEGLIGENCE- Rhea was in the employ of the defendant SELECTING UNSAFE METHODS OF WORK.

Where a servant of his own free will railway company as a fireman on one of its chooses an unsafe manner of doing his work engines running between Kansas City and or using his employer's appliances when other Joplin, and that on November 20, 1910, at and safer ways are at hand, he may still re- about noon, he reached Joplin, and went to cover for the injury, unless the way chosen was so dangerous that an ordinarily prudent his room and slept until 5 or 6 o'clock in person would not have undertaken it as he the afternoon, and then, according to the cusdid.

tom of the defendant's firemen, went to de[Ed. Note. For other cases, see Master and fendant's roundhouse in the discharge of his Servant, Cent. Dig. 88 681, 743–748; Dec. Dig. duty as fireman to look after the engine on $ 238.*] 8. MASTER AND SERVANT (8 289*)-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.

[Ed. Note.-For other cases, see Master and grabirons, one attached to the engine and Servant, Cent. Dig. 88 1089, 1090, 1092–1132; one to the tender, and they were placed Dec. Dig. § 289.*]

there by the defendant for the use of its em9. MASTER ADN SERVANT (8 243*)—LIABILITY ployés in climbing upon and getting down FOR INJURIES — CONTRIBUTORY NEGLIGENCE from the cab of the engine. It appears that -VIOLATION OF RULE.

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 Joplin, and that at the time of plaintiff's inso, since the rule implied that employés may jury the engine was in full control of the get on or off trains when moving under condi- hostler and his helper. The train was schedtions and circumstances that were apparently uled to leave Joplin at 7:15 p. m. After safe.

[Ed. Note.-For other cases, see Master and plaintiff had attended to his duties at the Servant, Cent. Dig. $8 682, 759–775; Dec. Dig. roundhouse, according to his custom as well 243.*]

as that of other firemen of the defendant 10. MASTER AND SERVANT (8 232*)-LIABIL- company, he rode on the engine from the ITY FOB INJURIES-SCOPE OF EMPLOYMENT. roundhouse toward the station where the

It was a railroad fireman's duty to go to hostler and his helper would deliver control the roundhouse and prepare his engine for his trips, and it was customary for him and other of the engine to the regular engineer and firefiremen to ride from the roundhouse to the man. The plaintiff had no duties to perform station where within a few minutes the engine in taking the engine from the roundhouse to would be turned over to the regular engineer and fireman in the engine then in the custody the station. He rode for a time in the seat of a hostler. While so riding to the station ordinarily used by the fireman, but which, plaintiff attempted to alight for the purpose on the trip from the roundhouse to the staof going to a nearby lunchroom for a cup of tion was the seat of the hostler's helper. coffee, and was injured by a grabiron giving way. Held that, while in alighting from the Soon after the engine started on its trip engine he was doing no act necessary to be from the roundhouse to the station, plaindone for the company, he did not voluntarily tiff arose from the seat and stood in the leave his employment or use the grabiron for a purpose for which it was not intended, so as gangway between the engine and tender, and to relieve the company of liability for his in- took hold of the grabirons. This position juries.

made him face the hostler with whom he (Ed. Note.- For other cases, see Master and was talking. The evidence shows that for a Servant, Cent. Dig. 88 678-680; Dec. Dig. $ distance of 100 or 150 feet he stood in that 232.*]

position with his hands on the grabirons, Appeal from Circuit Court, Barton Coun- and that as the engine approached Main ty; B. G. Thurman, Judge.

street he stepped down to the bottom step Action by Earl E. Rhea against the Mis of the engine, still holding to the grabirons, souri Pacific Railway Company. Judgment and that just as the engine came to Main for plaintiff, and defendant appeals. Af

street, and as it was traveling from four to firmed.

six miles an hour, he attempted to alight for This was a suit for damages for personal the purpose of going to a lunchroom for a injuries. The plaintiff recovered judgment, cup of coffee. He released his hold on the and defendant has appealed.

grabiron on the tender and swung out to alight, holding to the grabiron on the en-, be standing in the gangway, down to a point gine with his left hand; this grabiron turn- about even with the floor of the gangway. ed and fell out, and plaintiff fell upon the At the top, it is straight, and is held in place track, and one of his feet was run over and by two sockets through which it passes, cut off by a wheel of the engine. The host- eye sockets or rings go around the bar and ler did not know the plaintiff had been in- hold it in place—and in the top eye socket jured until he had run the engine on back there is a set screw which holds the bar some 50 or 75 feet to its regular stopping solid and firm. At the bottom the bar curves place at the station. The grabiron was found in toward the engine and fits into a socket, and on the ground, and was picked up and laid the socket at the lower end and the set screw in the cab of the engine.

at the top eye socket keep the grabiron solid This grabiron on the engine is a long iron and secure in its place. A photograph of that bar, extending from the back of the cab at part of the engine, which was exhibited to about the height of a man's head who would l the jury, is here reproduced:

[graphic][subsumed]

T'he defendant company has a rule that all, proper, the failure to give it in the presence engines must be inspected in the roundhouse of all the instructions which were given does at their terminals. The proof in this case not constitute reversible error. Moreover, is that, while there was no regular inspector a party cannot except to the opinion of the kept at Joplin by the defendant, the engines court refusing instructions to the jury movwere inspected by boilermakers and mechan. ed by the adverse party. Bailey v. Campbell, ics who worked in and about the roundhouse. 2 Ill. (1 Scam.) 47. The defendant also has a rule prohibiting [3] The appellant contends that the evitrainmen from getting off and on trains.when dence in this case discloses a state of facts they are in too rapid motion.

from which the defendant would not and The negligence charged in the plaintiff's could not have kpown of the defect, namely, petition is that the defendant carelessly and that the set screw was gone, for a sufficient negligently suffered, allowed, and permitted length of time to charge it with notice, and the set screw which passed through the top that it was erroneous to submit that queseye socket and which held the grabiron firm- tion to the jury, and therefore defendant's ly and securely in its proper place and posi- proffered peremptory instruction should have tion to be lost out and gone therefrom, and been given. that by a failure to make proper and timely [4] In support of this position, appellant inspection the defendant was guilty of neg. urges the doctrine laid down in the case of ligence, and that the appliance was out of Glasscock v. Dry Goods Co., 106 Mo. App. repair for such a length of time that the de 657, 80 S. W. 364, and other cases cited in fendant knew or could have known by the the brief declaring the same rule.

As a exercise of ordinary care and inspection that first consideration, that case turned upon the the set screw was gone and the appliance un- question of contributory negligence, as the safe

final point in the opinion fully discloses. The defendant denies its negligence, and However, the court in that case does lay contends that the evidence fails to disclose down a rule which is applicable here, to wit: the loss of the screw or the defective condi- Proof of negligence is not conjectural where tion for such a length of time before the in- established by facts from which a logical injury as to have allowed the defendant to ference may be drawn that the defects caushave discovered it and remedied it; and fur- ed the accident. In the Glasscock Case the ther contends that plaintiff cannot recover opinion shows that the break in the rope because of his own negligence in electing to did not come about by gradual wear and alight from the engine at the time he did tear, but was such as would be made when a and for the purpose testified to when he sudden force was applied to the rope, it becould have waited until the engine had gone ing too short-having been tied before the 75 or 100 feet farther, and alighted when it accident-of which defendant had no knowlwould have been standing still. Defendant edge in time to have remedied it. In the disclosed its theory of the case by offering case before us appellant argues that because and standing upon a peremptory instruction plaintiff climbed up and down five or six presented at the close of the plaintiff's evi- times within 30 minutes of the time of the dence, and refusing to introduce any evi- injury, and stood holding to the grabiron dence in its own behalf.

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 & Mor out of the eye socket, or was not out for ris and w. W. Calvin, all of Kansas City, such a period of time prior to the injury and Edwin L. Moore, of Lamar, for respond that defendant would have or could be chargent.

ed 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

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