Crohn v. Missouri Pacific Railway Co.

Supreme Court of Missouri

Crohn v. Missouri Pacific Railway Co.

154 S.W. 80, 248 Mo. 75, 1913 Mo. LEXIS 10

DecidedFebruary 28, 1913

StatusPublished

This text of 154 S.W. 80 (Crohn v. Missouri Pacific Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crohn v. Missouri Pacific Railway Co., 154 S.W. 80, 248 Mo. 75, 1913 Mo. LEXIS 10 (Mo. 1913).

Pincite

Opinion

BLAIR, C.

This is an appeal from an order granting a new trial after verdict for defendant in an action for damages for the death of Emil D’Haese, who was struck and killed by a steam-shovel which fell as a consequence of the engine upon which he was working being backed against it.

Coal was being loaded upon the tender by means of the steam-shovel, and the duties of deceased, who was aiding in' this work, seem to have required his presence on the engine. Two or three other employees were on the tender with him. The steam-shovel was upon trucks standing upon the same track with the engine, but behind it, and fastened to the track by hooks. The rear end of the coal bin in the tender having been filled and it being necessary to bring the [77]*77engine and shovel nearer together in order that the shovel or bucket might unload coal into the front end of it, the foreman ordered the engineer to back the engine two or three feet toward the steam-shovel. D’Haese stepped from the tender or tank to the top of the cab. .The engineer backed the engine some ten feet, striking the steam-shovel with sufficient violence to break the boom or arm, and it and the bucket, loaded with about one-half ton of coal, fell upon and killed D’Haese.

On the trial defendant asked and the court gave the following instruction:

“The court further instructs the jury that if you believe from the evidence in this case that deceased could, by the exercise of reasonable care on his part, have gotten in a position of safety so that he would not have been injured, but negligently and carelessly placed himself in a dangerous position, then plaintiff is not entitled to recover and it is your duty as jurors to return a verdict for defendant.”

On the hearing on the motion for new trial the circuit could reached the conclusion this instruction was erroneous and on that ground granted a new. trial.

Motion for New Triai: Filed in Time: Sunday, I. The verdict was returned on the 20th and the motion for new trial filed on the 25th of May, 1908. The untimeliness of the motion is assumed from these dates, and it is then argued that though the court might have set aside the ver- , ., diet on its own motion it had no power to sustain a motion filed out of time, and since the record shows the court did not act sua sponte, but on plaintiff’s motion, the order granting the new trial must be reversed. It is not necessary to discuss this contention further than to say that the 24th. of May was Sunday and consequently the motion was filed in time. [State v. Harris, 121 Mo. l. c. 447.] [78]*78The argument is based upon an incorrect assumption of fact and falls with its premise.

Contributory Erroneouse: instruction. II. The trial court was right in setting aside the verdict. The instruction constituted error. It did not require the jury to find any facts from which contributory negligence was infer-able, and authorized a finding for defendant, however remote deceased’s negligence might have been' (Moore v. Rapid Transit Co., 126 Mo. l. c. 277, 278), and whether or not “it was shown he knew, or ought to have known, of the material condition which rendered” what he did imprudent, if it was so. -[1 Labatt on Master & Servant, seo. 319.] Further, the instruction warranted a finding for defendant if deceased could, without injury to himself, have taken any position other than he did take. It is abstract, confusing and misleading. The judgment is affirmed and the cause remanded.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion, of Blair, C., is adopted as the opinion of the court.

All the judges concur.

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BLAIR, C.

This is an appeal from an order granting a new trial after verdict for defendant in an action for damages for the death of Emil D’Haese, who was struck and killed by a steam-shovel which fell as a consequence of the engine upon which he was working being backed against it.

Coal was being loaded upon the tender by means of the steam-shovel, and the duties of deceased, who was aiding in' this work, seem to have required his presence on the engine. Two or three other employees were on the tender with him. The steam-shovel was upon trucks standing upon the same track with the engine, but behind it, and fastened to the track by hooks. The rear end of the coal bin in the tender having been filled and it being necessary to bring the [77]*77engine and shovel nearer together in order that the shovel or bucket might unload coal into the front end of it, the foreman ordered the engineer to back the engine two or three feet toward the steam-shovel. D’Haese stepped from the tender or tank to the top of the cab. .The engineer backed the engine some ten feet, striking the steam-shovel with sufficient violence to break the boom or arm, and it and the bucket, loaded with about one-half ton of coal, fell upon and killed D’Haese.

On the trial defendant asked and the court gave the following instruction:

“The court further instructs the jury that if you believe from the evidence in this case that deceased could, by the exercise of reasonable care on his part, have gotten in a position of safety so that he would not have been injured, but negligently and carelessly placed himself in a dangerous position, then plaintiff is not entitled to recover and it is your duty as jurors to return a verdict for defendant.”

On the hearing on the motion for new trial the circuit could reached the conclusion this instruction was erroneous and on that ground granted a new. trial.

Motion for New Triai: Filed in Time: Sunday, I. The verdict was returned on the 20th and the motion for new trial filed on the 25th of May, 1908. The untimeliness of the motion is assumed from these dates, and it is then argued that though the court might have set aside the ver- , ., diet on its own motion it had no power to sustain a motion filed out of time, and since the record shows the court did not act sua sponte, but on plaintiff’s motion, the order granting the new trial must be reversed. It is not necessary to discuss this contention further than to say that the 24th. of May was Sunday and consequently the motion was filed in time. [State v. Harris, 121 Mo. l. c. 447.] [78]*78The argument is based upon an incorrect assumption of fact and falls with its premise.

Contributory Erroneouse: instruction. II. The trial court was right in setting aside the verdict. The instruction constituted error. It did not require the jury to find any facts from which contributory negligence was infer-able, and authorized a finding for defendant, however remote deceased’s negligence might have been' (Moore v. Rapid Transit Co., 126 Mo. l. c. 277, 278), and whether or not “it was shown he knew, or ought to have known, of the material condition which rendered” what he did imprudent, if it was so. -[1 Labatt on Master & Servant, seo. 319.] Further, the instruction warranted a finding for defendant if deceased could, without injury to himself, have taken any position other than he did take. It is abstract, confusing and misleading. The judgment is affirmed and the cause remanded.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion, of Blair, C., is adopted as the opinion of the court.

All the judges concur.

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Bluebook (online)

154 S.W. 80, 248 Mo. 75, 1913 Mo. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crohn-v-missouri-pacific-railway-co-mo-1913.