text:
    OTTO BRANDS v. ST. LOUIS CAR COMPANY, Appellant.
    Division Two,
    July 14, 1908.
    1. NEGLIGENCE: Master and Servant: Implements. The master is hound to use reasonable care and precaution to furnish his servant safe appliances with which to do his work and in keeping them in good condition. It is not his duty to furnish any particular kind of tools or appliances, or the newest and •most improved patterns. He fulfills his duty by using ordinary care and prudence to furnish safe and suitable tools and appliances; and “reasonably safe” means safe according to the ordinary usages and risks of the business.
    2. -: -: -: Emery Wheel: Inherently Dangerous. The petition charged that emery wheels, used in grinding castings and tools, if straight, that is, not thicker at the center than at the outer rim, and if not protected by slanting clamps, were inherently liable to break and fly to pieces when in use, but if convex in form and protected by slanting clamps, were safe, and that the master, with knowledge of these facts, had used the straight wheels. Plaintiff, an inexperienced boy, was at work under the direction of the foreman, at a straight wheel eighteen inches in diameter, when it broke, and a flying piece struck him on the head. Two experts testified that any kind of emery wheel was liable to break, but they both further testified that the straight emery wheels were in general use, that they could not recall having seen any convex wheels in actual use in any of the many large manufacturing establishments in the vicinity, though they had seen some exposed for exhibition or sale, and in its most favorable light to plaintiff the testimony of these two experts and of the large number of other witnesses showed no more than that occasionally at very rare intervals during twenty-five years straight emery wheels had been known to explode.

      Eelcl, first, it was error to leave to the jury the question of negligence based on the failure of the master to adopt a convex wheel, even though he may have known there was such a device at that time.

      Held, second, that, as there was no negligence on the master’s part in using the straight emery wheel then in general use, and no evidence that such wheels were so inherently liable to fly to pieces as to require him to take notice that they were dangerous, the master was not negligent in not warning the plaintiff of the danger incident to working with emery wheels. Had plaintiff been told that emery wheels at long intervals had been known to explode, it could not have lessened the likelihood of explosion, since there is no pretense that the wheel broke on account of any misuse of the same by plaintiff.

      Held, third, that, as the expert testified that in an experience of twenty-two years he had known only two straight emery wheels to explode, though they were in very general use, and as there was no evidence that the master had knowledge of such explosions, there is no evidence to support the charge that the master knew that the particular emery wheel was dangerous and liable to explode and yet employe^ plaintiff to work with it.
    q. -: -: -: -: Experts: Liability of Particular Wheels to Break. An expert who knows the constituents and construction of wheels of the particular pattern of the one used, is competent to testify as to its liability to fly to pieces when in use, but if he does not know that, and emery wheels are shown to be of different construction and consistency, he is not competent to testify that all emery wheels are liable to explode.
    Appeal from St. Louis City Circuit Court. — Hoot. O’Neill Ryan, Judge.
    Reversed.

      Secldon & Holland and James R. Van Slyhe for appellant.
    (1) Tire court erred in refusing to give the peremptory instruction asked by defendant at the close of all the evidence, (a) There was no evidence of any negligence on the part of defendant in connection' with the use of the emery wheel mentioned in the evidence, because the testimony showed that it was the kind of wheel in general and almost universal use at the time of the accident. This is the conclusive test of the question of negligence. Minnier v. Railroad, 167 Mo. 99; Chrismer v. Tel. Co., 194 Mo. 189; Higgins v. Famming, 195 Pa. St. 599; Service v. Stoneman, 196 Pa. St. 63; Shadford v. Railroad, 111 Mich. 390; Omaha Bottling Co. v. Theiler,. 59 Neb. 257; Iron Ship Building Works v. Nut-tall, 119 Pa. St. 149; Schroeder v. Car Co., 56 Mich. 132; Demers v. Marshall, 178 Mass. 9; Hale v. Cheney, 159 Mass. 268; Rooney v. Sewall, 161 Mass. 163; Breig v. Railroad, 98 Mich. 222; Allison Mfg. Co. v. McCormick, 118 Pa. St. 519'. (b) Plaintiff alleged in his petition that defendant, in spite of having actual knowledge of the fragility of said emery wheel, failed to notify plaintiff of the danger of working near same. There was no testimony that said wheel was fragile and none that defendant had either actual knowledge thereof, and no testimony of any negligence on the part of defendant in failing to give plaintiff notice. (2) The court erred in allowing plaintiff’s witnesses Kerr and Schott to testify as experts in reference to the likelihood of emery wheels to break. Said witnesses were not properly qualified as experts' to testify in reference to the wheel in question.

      A. R. Taylor for respondent.
    (1) There was evidence on each charge of negligence from which the jury were authorized to find the ultimate fact of the negligence of defendant causing the injury to plaintiff; in such case the settled rule of decision in this State is that a demurrer to the evidence could not he sustained; indeed, if there is any evidence tending to prove either ground of negligence constituting a cause of action, it is error to sustain a demurrer to the evidence. Eckhard v. Railroad, 190 Mo. 611; Powers v. Railroad, 202 Mo. 280. (2) The court did not err in allowing witness Schott to express an opinion as to the liability of emery wheels to explode and break to pieces. Appellant urges as a reason that he did not know the ingredients of which the wheel 'was composed. This may be true, and yet experience may teach that it will explode. Probably no one except the proprietor knew the secret of the composition of which the wheel was constructed. But nevertheless, a man acquainted with its use and construction, an experimental machinist who has given study to the subject, was competent to express an opinion upon the question. Helfenstein v. Medart, 136 Mo. 615. The same may be answered to the contention of appellant that witness Kerr was not qualified to express an opinion on the liability of emery wheels to explode. (3) Appellant is mistaken in saying there was no evidence that the wheel was liable to break and explode. We call attention to plaintiff’s witnesses Schott and Kerr, on this point, and the evidence and action of defendant’s witnesses and foreman, Ahring. If these witnesses are to be believed, there was ample evidence on that issue given both for defendant and plaintiff.
   GANTT, J.

This is an action for the recovery of damages on account of personal injuries sustained by the plaintiff, at that time, a minor nineteen years old, on the 29th day of May, 1903, by reason of the explosion of an emery wheel while the plaintiff was in the service of the defendant at its factory at 8000 North Broadway in the city of St. Louis.

The petition in substance alleges that the defendant is a corporation by virtue of the laws of this State, and was at the time of the said injury engaged in the manufacturing business; that on the 29th of May, 1903, plaintiff, who was then a minor nineteen years of age and without experience in the use of emery wheels and ignorant of the dangers incident to such use, was required by the defendant’s foreman to do certain grinding work upon the emery wheel; that emery wheels when in revolution are inherently apt to break, and when so breaking pieces of the wheel are liable to strike and injure person's working at or near them, on account of which it was necessary, for the reasonable security of defendant’s employees working about such wheels, that they should be convex, that is, of a construction of greater thickness at the center than near the rim, and that slanting clamps should be adjusted on said wheels to prevent the broken pieces from escaping in case of breakage. That the wheel at which plaintiff was required to work as aforesaid was defective and dangerous, in that it was made of uniform thickness, instead of being made thicker at the center as above described, and in that it was not guarded by slanting clamps. That on the date above mentioned said emery wheel at which plaintiff was required to work broke on account of the said susceptibility of such wheels to break, and a piece of it struck the plaintiff in the head and seriously injured him. The plaintiff was without experience in the work of operating an emery wheel and was ignorant of the dangers and qualities aforesaid, and the defendant’s foreman who ordered plaintiff to work at said wheel wholly failed to warn him of the dangers of said work; that defendant was negligent in providing said wheel for said work and in ordering said plaintiff to do said work on said wheel, and was further negligent in failing to warn plaintiff of the said dangers of said work and in failing to instruct him ' as to said work and the dangers thereof; that on account of the foregoing, plaintiff is damaged in the sum of fifteen thousand dollars.

The answer was a general denial and a' general plea of contributory negligence. The reply was a general denial. The trial resulted in a verdict for the plaintiff for $5,000, from which in dne form 'the defendant appeals to this court.

It will thus be seen that the petition is based upon three counts of negligence. First, providing to the plaintiff work with an appliance of a defective and dangerous construction. Second, that the appliance, to-wit, an emery wheel, is inherently dangerous, in that it will explode and break while in use, and that the defendant was negligent in not providing guards to prevent the pieces of the broken wheel from flying and striking and injuring the plaintiff at work. Third, that said appliance being so.dangerous and the plaintiff being ignorant of the dangers of said appliance and without experience in the use of the same, defendant was guilty in failing to warn him of the said dangers, or to sufficiently instruct him as to. the safe manner of its use.

The testimony tended to show that as a result of being struck by a piece of emery wheel that exploded in defendant’s plant on the 29th day of May, 1903, plaintiff sustained a fracture of the skull. He was treated by a surgeon and an operation performed to remove the piece of bone that was depressed. Plaintiff testified that his eyesight was not as good as it was before the accident, and that he had trouble in stooping over or raising weights. Plaintiff testified that he was nineteen years of. age at the time of the accident, and prior to that time had been living in Illinois, engaged in farm work, and had done some work in a coal mine. On the day prior to his injuries he went to work for the defendant. He was set by the foreman to do a piece of work on the twelve-inch emery wheel and worked at that about two hours; after that he was put to work at a smaller emery wheel. On the morning of the 29th of May, 1903, plaintiff was put to work on the large eighteen-inch emery wheel. The foreman showed him how to do the work. Plaintiff worked on this wheel about six hours before it exploded. About two o’clock of that day the wheel burst and a piece of it struck plaintiff over the right eye: The wheel was about two inches thick throughout. The wheel is what was called in the testimony a straight wheel, as contrasted with a convex wheel. On each side of the wheel there was a clamp. At the time the wheel burst plaintiff was using it in a way in which he had been instructed to use it. Since the accident and in the summer of 1903, plaintiff began to work as a eager in a coal mine and averaged some seven or eight hours a day and earned about $1.25 per day. Prior to his injury he was receiving $1.75 per day.

Upon the first charge of negligence, to-wit, that plaintiff was put to work with a defective and dangerous appliance, the plaintiff called two experts, Harry S. Schott and John Jacob Kerr. Schott testified he was an experimental machinist; that he had had experience in using emery wheels for about twenty-three years; that he did not know the composition or ingredients of emery wheels; that an emery wheel is subjected to different temperatures, and is likely to explode at any time; that this is true of most any kind of emery wheel. That prior to May 29, 1903, there was made an emery wheel that was larger in the center and tapered towards the edge with a slanting clamp on each side; these clamps are so constructed as to hold the parts of the wheel in case of a break. On cross-examination he was asked: “Was your knowledge of conditions such during those three years that you can tell what was in common usage, was it in common usage to use a straight wheel in factories in this vicinity, or common usage to use a convex wheels ” Ans. “There were a great many I expect you might say in common use, of straight wheels, because the average wheels, I expect, used in the city were mostly small wheels, hut when it comes to the larger wheels I expect there were probably nearly as many convex or concave wheels as of the other kind. Q. As I understand you, in the vicinity of St. Louis you think as to the small wheels there were probably more straight than convex, but as to the large wheels you think they were about equal in number? Ans. Perhaps so, I could not form any opinion of that. Q. Take eighteen-inch wheels, eighteen inches in diameter, and two inchés thick, do you tell the. jury under oath that in the vicinity of St. Louis there were as many convex wheels of that size in use at that time as there were straight wheels ? Ans. No, I would not. Q. No you would not. Can you tell me of a manufacturing plant in the city of St. Louis, or in the vicinity of it, that used an eighteen-inch wheel that was convex at that time? Ans. No-, I don’t believe I could tell you who is using it. Q. Did you see a single eighteen-inch convex wheel in use in the vicinity of St. Louis during that time? Ans. No, sir, I was not interested in that line at that time. Q. You have just told me you had not seen one eighteen-inch wheel, convex in shape, used in this vicinity during those three years; now I ask you this, you will not undertake then to state to the jury that as to eighteen-inch wheels the usual custom was to use convex ones, will you? Ans. No, but wheels eighteen inches in diameter and over are provided with that sort of contrivance, whether they are practically or universally used I could not tell that. Q. You would not undertake to say that eighteen-inch wheels of convex shape were in general use' in this vicinity at that time? Ans. No, I have no record of what were used at that time? Q. You will not state what portion were convex and what portion were straight at that time? Ans. No, sir. Q. You will not state that in the city of St. Louis, nor in the vicinity, during those years there was a single convex wheel of the size we have' just mentioned used, will you? Ans. That I do not know. ’ ’ Asked how many emery wheels eighteen inches in diameter and two inches thick he had seen explode while in use, he answered, that he had never used any or been around much where they were used. He had never seen one explode; had seen one twelve inches in diameter explode and one six inches in diameter. Had never himself seen any other explode and he had twenty-three years experience. As to convex wheels, the witness testified that prior to the date of the accident, May 29', 1903, he had seen convex wheels on exhibition in shops, but had never seen one in use anywhere. The other expert, Kerr, testified in a general way that there were various kinds of emery wheels and they are apt to break, some more readily than others; that in an experience of twenty-two years he had seen not more than five break. That prior to May 29, 1903, there was made what were called convex wheels, that is, wheels larger at the center and tapering to the edge, equipped with slanting flanges. The theory of this design is to lessen danger in case of an explosion. Witness had seen such a wheel in two places in St. Louis prior to May 29', 1903. He could not state what was the common or general usage before that time.

On this topic the defendant’s testimony contradicted the plaintiff’s that there was negligence on the part of the defendant in using the said wheel. Carl Horix testified he had dealt with emery wheels for thirteen years and they were not inherently liable to break, and that during that period he had only known one to break or explode. He testified that prior to May 29, 1903, he had never seen a convex emery wheel. John F. Hawkins testified that he had had an experience of twenty-seven years with emery wheels and had never known one of them, to break during- that period, and that they were not inherently liable' to break. Prior to May, 1903, he had never seen a convex wheel. Witness Pothoff had an experience of twenty-one years and had only known one emery wheel to break. In his opinion they were not inherently liable to break or explode, and prior to injury to plaintiff he had never seen what is known as a convex emery wheel. J. L. Starr, with an experience of twelve years, and W. H. Kane, with an experience of twenty-four years, had handled emery wheels in large numbers and had never known one to break or explode during their experience. They testified they were not inherently liable to break. Walter Miller, who had been foreman of the defendant for six years, testified that there were fifty emery wheels in operation all the time and that about 500 were used during the year and only one had exploded before this one which injured .plaintiff. William Ahring testified that during an experience of three or four years with emery wheels he had never known but one to break and that one was broken while it was being tested and not while in use.

This practically was all the evidence on this point.

I. A vital, if not controlling, question in this case, is whether there was sufficient evidence to submit the case to the jury. It is the settled law of Missouri that the master is bound to use reasonable care and precaution to furnish his servant safe appliances with which to do his work and in keeping them in good order and condition, and the servant does not assume the risk of danger from the use of unsafe machinery, unless the defects are so glaring and obvious that a reasonably prudent man would not attempt to use them. [Bender v. Railroad, 137 Mo. l. c. 245 , Minnier v. Railroad, 167 Mo. l. c. 112.] It is not the duty of the master to furnish any particular kind of tools, implements or appliances. His duty in this respect is to. use ordinary care and prudence in furnishing safe and suitable tools and implements. No inference of negligence can arise from evidence which shows that the implement was such as is ordinarily used for like purposes by persons engaged in the same kind of business. [Bohn v. Railroad, 106 Mo. l. c. 433.]

In Steinhauser v. Spraul, 127 Mo. l. c. 562, it was said: “It is well-settled law that an employer is not bound to furnish his employees the safest known appliances, tools or machinery, the latest approved pattern of tools and improvements therein, etc., nor does he render himself liable by failing to discard tools or appliances which are not such, and to supply their places with those which are more safe.” And in Minnier v. Railroad, supra, it is said: “All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of the implement or nature of the mode of performance of any work, ‘reasonably safe’ means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may he convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of the community.” This statement of the law was adopted and approved by this court in Banc in Chrismer v. Bell Telephone Co., 194 Mo. 189, and is announced in many well-considered cases in other jurisdictions. [Higgins v. Panning & Co., 195 Pa. St. 599; Service v. Shoneman, 196 Pa. St. 63; Shadford v. Railroad, 111 Mich. 390; Titus v. Railroad, 136 Pa. St. 618; Omaha Bottling Co. v. Theiler, 59 Neb. 257; Domers v. Marshall, 178 Mass. 9; Breig v. Railroad, 98 Mich. 222; Allison Mfg. Co. v. McCormick, 118 Pa. St. 519.]

With these fundamental principles as our guide, the question is, did the plaintiff establish his first ground of negligence, to-wit, that the defendant furnished him with an appliance of a defective and dangerous construction with which to do his work? On the part of the plaintiff, it is insisted that the testimony of his two experts Schott and Kerr established the fact that any and all emery wheels are inherently liable to break or explode and therefore he was entitled to go to the jury. It is true that these two experts testified in substance that any kind of an emery wheel was liable to break, but it was developed from the examination of these same witnesses that emery wheels were constantly in use in all the great manufacturing establishments of this country for the purpose of grinding castings and tools, and that the so-called straight emery wheel, a wheel of the character of the one which broke in this case and injured the plaintiff, was of general use in all large manufacturing establishments, at least in the vicinity of St. Louis. Witness Schott testified that he knew little or nothing about the constitutents of emery wheels, or how they were made, and when called upon to give his knowledge of the liability of these wheels to break, he testified that in an experience of twenty-three years, he had known only two to break. And witness Kerr stated that in an experience of twenty-two years he had only known five to break. And the witnesses for defendant, with experiences ranging from three and four to twenty-seven years, testified, some of them, that they had never known an emery wheel to explode, and others knew one in all that time, and it was shown that in the shops of the defendant there were fifty emery wheels in operation all the time, and about 500 would be used during the year, and only one had ever broken or exploded prior to the injury to the plaintiff, so that the substance of this testimony from both sides established .that occasionally at rare intervals a straight emery wheel had been known to explode. Can it be said from this testimony that this character of emery wheels broke so often or was so inherently dangerous that they can be characterized as implements inherently apt to break, or that they break with such frequency as to require the users of them to adopt a sort of guard or fender to protect the workmen in the use of them, or require the manufacturer to abandon this form of a wheel and adopt a convex wheel with convex flanges in lieu thereof? We think not. If we are not to disregard the rule announced in Minnier v. Railroad, supra, then when an employer furnishes his servant implements and appliances of ordinary character for the work according to the average habits and ordinary risks of the business in which he is engaged he has performed his duty to his servants. We think that this evidence shows without any doubt that the defendant in using this character of an emery wheel was conforming to the ordinary and usual practice of all the large manufacturing establishments in the vicinity of St. Louis and throughout the country. And the mere fact that now and then in an experience of twenty years a witness had known of two or five explosions of these emery wheels in various parts of the country, did not establish that it was negligence on the part of the defendant to use these emery wheels in its work. So varied and so different were the methods of making these wheels, that it might well happen that some wheel of a certain make might explode and yet be no evidence of negligence on the part, of defendant in using the wheels of the manufacture of which the wheel in evidence was a sample. But more than this, the negligence upon which this case is grounded is that the defendant did not use the convex wheel instead of the straight wheel. It cannot be contended under this evidence that this convex wheel was in general use prior to the injury to the plaintiff. The most that can be said of the testimony on this point is that there was some showing that a convex wheel had been invented prior to the accident and was on exhibition in some of the stores and had been seen m use in two places only. Whereas the defendant in furnishing the straight wheel was using a device in general use and one which had been in use for a long time and this being true it must be held that the defendant complied with the test in that it was exercising the ordinary care exercised by others in the same character of business. And as said in Higgins v. Fanning & Co., 195 Pa. St. 599, “ ‘Whatever is, according to the general, usual and ordinary course, adopted by those in the same business, is reasonably safe within the meaning of the law.’ [Kehler v. Schwenk, 144 Pa. St. 348.] The test is negligence, and negligence cannot be imputed from the employment of machinery in general use. [Reese v. Hershey, 163 Pa. St. 258.]” We think it is clear that under the evidence in this case up to the time, at least, of the injury to plaintiff, the defendant was not negligent in failing to adopt what is known as the convex wheel, as the proof was overwhelming that in all manufacturing establishments of a similar character to that of the defendant’s, this convex wheel was only in use by two of them. Accordingly, in our opinion, it was error to leave to the jury the question of negligence based on the failure of the defendant to adopt the convex wheel, even though it might have known that there was such a device at that time, as it was not bound to adopt every new appliance which might be devised for its work so long as it was using an appliance in general use by other similar establishments in the same character of business.

II. The second proposition is that the defendant, with actual knowledge that emery wheels were liable to explode, was negligent in not warning plaintiff of the danger' incident to working with emery wheels. But if we are right that there was no negligence on the part of the defendant in using the said straight emery wheel then in general use, and m> testimony that such wheels were so inherently liable to break up as to require defendant to take notice that they were dangerous, it cannot be said, we think, that the defendant had actual knowledge that such wheels were inherently dangerous to its employees. If we are right in holding, as we have held, that plaintiff failed to establish that the ordinary usage of the business required defendant to use a convex wheel, then defendant was guilty of no negligence in using the straight emery wheel, and no negligence in failing to warn plaintiff of the dangers incident to its use. The plaintiff’s own testimony demonstrates that he was directed how to work with this machine and it is not pretended that the wheel broke on account of any misuse of the same by plaintiff. And hence the fact that plaintiff was not told that emery wheels did explode or break in some instances, in no wise contributed to cause this particular one to break or explode. The mere failure to inform plaintiff that emery wheels will explode at times had nothing to do with causing this emery wheel to explode. And had he been told that emery wheels at long intervals had been known to explode, it could not in any manner have lessened the likelihood of explosion in this case.

III. Recurring to the expert testimony on the part of the plaintiff, it should be observed that the wheel, which exploded in this case, was what was known as the “Springfield, Ohio, Safety” pattern. The witness Schott was not asked whether he knew the ingredients of that particular make of emery wheels or whether he had ever had any experience in watching them, but on the contrary was asked the general question as to the breakability of all emery wheels, after he had testified that they were all different in construction. If this witness had known the constituents of this Springfield wheel, whether they were made like other wheels he had observed, or that he had had actual experience with Springfield wheels, it would have been competent to ask him as to the danger of explosion of such wheels. But we think that the general question asked him in regard to emery wheels generally and after he had testified that-they were made in different ways and out of different ingredients, and when he had shown no knowledge of the ingredients which entered into the composition of the Springfield wheel, was improper. The defendant was not called upon to try the records on all different kinds of emery wheels. And the same objection, we think, obtains as to the testimony of the witness Kerr. He had no knowledge of the ingredients of the different wheels, nor of the manner of putting them together so as to qualify him to speak intelligently as to the durability and reliability of the different makes.

IY. Again, the plaintiff charges in his petition that the defendant knew that the said emery wheel which exploded and caused the plaintiff’s injury was known by the defendant to be dangerous and yet employed plaintiff to work at and upon it. We think there was no evidence to sustain this charge that this particular emery wheel was dangerous. The only testimony in reference to this point on the part of the plaintiff was that of his expert who testified that in an experience of twenty-two years he had known two straight wheels to break or explode, but there was no evidence that the defendant had knowledge of such explosions, and on the contrary, it was shown that defendant had been using these wheels for six years and one only had exploded and that while it was being tested, and did not stand the preliminary test, which tended only to show not that this pattern of wheel was dangerous, but simply that this particular wheel, so being tested, was defective. The defendant offered several instructions embodying the principles which we have already announced and they were refused by the court. It is not necessary in our view of the case to discuss these seriatim as we have reached the conclusion that there was no substantial evidence of negligence upon which to submit the cause to the jury, but if there had been these instructions in the main should have been given. In our opinion there was no evidence of negligence on the part of the defendant either in using the straight wheel, from the explosion of which plaintiff was injured, or in not adopting what is known as the convex wheel, because at that time there was no evidence that this convex wheel with flanges had come into general use among manufacturing establishments in St. Louis and its vicinity. It results from what we have said that the judgment must be reversed without remanding. It is so ordered.

Fox, P. J., and Burgéss, J., concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    W. W. TAYLOR & SONS BRICK COMPANY, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY.
    Division Two,
    July 14, 1908.
    THEORY OF TRIAL: Changed on Appeal: Fire From Engine. Where plaintiff at the trial, both by his evidence and instructions, based his right to recover on the theory that the sparks and cinders which set fire to his factory were emitted from a train belonging to and being operated by defendant, and lost before the jury on that theory, he will not, in his motion for a new trial or on appeal, be permitted to shift his position and recover on the theory that defendant was liable whether the fire was emitted from one of its own engines or from engines of other companies who used its tracks.
    Appeal from Jackson Circuit Court. — Eon. Jas. II. Stover, Judge.
    Awibmed.
    I. N.. Watson for appellant.
    The court erred in instructing the jury to the effect that if the fire was set by an engine belonging to one of the other railroads, using defendant’s tracks, plaintiff could not recover. Section 1111, Revised Statutes 1899, makes each company, owning or operating a railroad in this State, liable in damages to every person and corporation whose property may be injured or destroyed by fire, communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such railroad corporation, etc. McFarland v. Railroad, 94 Mo. App. 336. This section does not limit the liability to fires set by the railroad’s own engines, but the statute says the owner of the road shall be liable for any fire communicated directly or indirectly by locomotive engines in use upon the railroad owned, etc. Hence defendant’s instruction which tells the jury that if plaintiff’s plant was set on fire by an engine of one of the other railroad companies shown by the evidence to be using those tracks, the plaintiff could not recover, was erroneous. Sec. 1060, R. S. 1899; Markey v. Railroad, 185 MO'. 348; Mathews v. Railroad, 121 Mo. 298; Dean v. Railroad, 199 Mo. 389; 2 Elliott on Railroads, sec. 477; McCoy v. Railroad, 36 Mo. App. 452; Driscoll v. Railroad, 32 AtL-356; Noyes on Intercorp. Relations, 261; McFarland v. Railroad, 94 Mo-. App. 336.

      Cyrus Creme and S. W. Sawyer for respondent.
    Defendant’s instructions complained of merely confined plaintiff to the case which it presented by its pleadings, evidence, and instructions. Plaintiff chose its own theory and is now bound by that. Plaintiff’s theory was shown to be the same in several ways and by each of these it is now bound. First, by its pleadings. Feary v. Railroad, 162 Mo. 96; Campbell v. Railroad, 175 Mo. 161; Glaser v. Rothschild, 106 Mo. App. 418; Hamilton v. Railroad, 100 S. "W. 671; Kenney v. Railroad, 70 Mo. 255; Melvin v. Railroad, 89 Mo. 106. Second, by the evidence. No- case was made against any other than a Kansas City Southern engine, and, hence, plaintiff’s recovery was rightly limited to damage caused by such engine. Peffer v. Railroad, 98 Mo. App. 291. Third, by plaintiff’s instructions. Pope v. Ramsey, 78 Mo-. 163; Hackett v. Underwriters, 79 Mo. App. 19; Vining v. Ins. Co., 89 Mo. App. 319. Fourth, by" plaintiff’s conduct throughout the trial, the line of evidence offered, the examination and cross-examination of witnesses, and its whole attitude. Seymour v. Newman, 77 Mo. App. 584; Hilz v. Railroad, 101 Mo. 41; Jones v. Haberman, 94 Mo. App. 4.
   FOX, P. J.

This cause is now pending in this court upon appeal on the part of the plaintiff from a judgment of the Jackson County Circuit Court in favor of the defendant. This is an action to recover damages -for the destruction of a brick plant in Kansas City, Missouri, owned and operated by the plaintiff, which is alleged to have been caused by fire from one of defendant’s engines, being run and operated over defendant’s railroad tracks, which passed by and near the brick plant of the plaintiff.

The charge in the petition is “that on the 8th day of January, 1903, defendant carelessly, negligently, and wrongfully ran and operated an engine with a large train of cars thereto attached over its tracks aforesaid, in such a manner as to cause-said engine to emit a large amount of sparks and cinders therefrom, and defendant carelessly, negligently, and wrongfully operated an engine with a defective smokestack, so that sparks and cinders escaped therefrom, and by means of such careless, negligent and wrongful acts aforesaid sparks and cinders were emitted from one of defendant’s engines and were blown against and upon the engine house and boiler room aforesaid belonging to this plaintiff,” etc. After the statement of plaintiff’s loss the petition further charges “that by reason of all of the aforesaid careless, negligent and wrongful acts of the defendant, sparks and cinders were emitted from said engine and conveyed by the wind,” etc. There was also embraced in the petition an itemized statement of the loss by reason of the fire, which in the aggregate amounted, to $12,771.82. The answer of the defendant was a general denial.

We shall not undertake to give in detail all of the testimony developed at the trial. We have read in detail the entire disclosures of the record and find that there was testimony offered by the plaintiff tending to show that the plaintiff on January 8, 1903, was the owner of a brick plant in Kansas City, located at First and Grillis streets. On the northwest corner of said plant was located the engine room, which was a frame structure, boarded upright, with small cracks between the boards. On the east of this engine room and adjoining thereto was the boiler room, and east of that were office rooms, and southeast of the engine room were sheds and kilns, and a large barn on the southwest corner of the brick plant. There was other testimony tending to show that the defendant owned and operated a double-track railway along the north side of plaintiff’s brick plant, about fifteen feet distant from the engine room and boiler room, as heretofore stated; that coming west on said tracks there was a steep upgrade, and engines had hard work to pull nine or ten loaded cars up> that grade. It was further shown that through some sort of an arrangement, the. Frisco, St. Joe & Grand Island, Quincy, Omaha & Kansas City Railwajr Company, and the Independent Air Line were permitted to run engines and cars thereto attached over the tracks of the defendant in front of plaintiff’s brick plant.

One of the witnesses for the plaintiff, Ed Trapp, testified that the fire which destroyed the brick plant, in his opinion, occurred between ten and eleven o ’clock. He further stated that he saw a freight train pass over the defendant’s track ten or fifteen minutes before the fire, and he says that after the passing of that freight train he does not think there was any other train that passed between that time and the fire. The freight train of which this witness testified was a freight train with one. engine; he did not know how many cars were in the train; he says that he saw emitted from the engine smoke, sparks and cinders; he said that the cinders looked like they were of pretty good size; he also stated that the sparks were a good-size class of sparks. He stated that the engine of the Kansas City Southern ran over the road. He was unable to tell the name of that engine he saw that morning as he paid no attention to that. Inquiry was made of Mr. Trapp: as to his knowledge of other trains passing over the tracks of the defendant. His answer to that inquiry was that he knew nothing about the passing of other trains, and he said, “I noticed the Kansas City Southern and I don’t know of any other trains running over the tracks.”

Another witness testified for plaintiff, A. B. Mc~ Beth. This witness spoke of the different railroads that operated trains over the tracks of the defendant; he saw the fire consuming this brick plant on this morning, and while he says that frequently many trains would pass by this brick plant during the day, he says, referring to the morning of the fire, “I can’t say whether I saw any freight trains passing, except the Kansas City Southern.” This witness further testified that he was unable to call to mind any freight train that morning except the Kansas City Southern.

John W. Taylor, a witness on the part of the plaintiff, testified substantially as follows:

“Q. Are you familiar with what trains run over that track, or did run over that track? A. I was at the time, yes, sir.
“Q. What trains ran over there?
“Mr. Crane: I understand you were in Iola when this occurred?
“The Witness: Yes, sir.
“Q. I mean generally prior to that? A. The Kansas City Southern seemed to have a regular time for transfers at about 10 to 10:15, from the east bottoms to the west bottoms.
“Q. What kind of a transfer was that? A. Freight.
“Q. What kind of a grade was that? A. Well, it was a very steep grade and a' curve at the same time.
“Q. Did you ever see any freight trains of any other road running over that line except the Kansas City Southern? A. The first three months I was there the Kansas City Southern did a little switching and then the Kansas City Suburban Belt, as it is called, did all their own switching on their line.
“Objected to by defendant as incompetent, irrelevant and immaterial.
“Q. Come down to the time the Kansas City Southern took charge of the line? A. There was no freight handled by any other road.
“Q. Their engines handled freight there? A. Yes, sir.
“ Q. How long had that transfer been made there at-that point about ten o’clock prior to that? A. Well, it seemed pretty regular for about a year before that.
“Q. How large a transfer would they usually bring up there coming west? A. Well, we didn’t always count them; I don’t remember that I ever counted them myself; I know they have taken some heavy trains.
“Q. A regular transfer of freight every day? A. Yes, sir.”

Robert Campbell, a witness for plaintiff, was the engineer in charge of the engine and boiler room in the brick plant. He stated in substance that there was a train passed and that it was one of the usual trains; he said it was passing upgrade and seemed to be very heavily loaded, and it was necessarily puffing very freely, as usual on a long run. He stated that he was working- with Mr. Heitman in the dry room and where they could hear the train and there was some remark made about this train, but the witness stated that he forgot what remark it was. - He then stated that the first fire lie saw was about ten minutes after the train .got by.- He further testified as to the extent of the damages by reason of the burning of the plant.

There was testimony offered on the part of the defendant tending to show that the equipment of the freight train engines of defendant were of the most improved character, and in perfect condition, and by reason thereof could not have emitted sparks. There was other testimony tending to show that the fire originated in plaintiff’s own engine house. In other words, there was a conflict of evidence between the plaintiff and the defendant as to whether or not this fire originated from sparks or cinders emitted from the engine operated by the defendant.

At the close of the evidence the following stipulation was filed in this cause: “By agreement of counsel it is stipulated that the jury may find simply for the plaintiff or defendant, without finding any amount, which is to be submitted to a referee.”

At the request of the plaintiff the court gave instruction numbered 1, which was as follows:

“The court instructs the jury that if they find from the evidence in this case, that on January 8, 1903, plaintiff was the owner of the property described in the evidence, and that op said date said property was destroyed by fire communicated from an engine operated by defendant upon its road, in passing said place, provided you find said property was destroyed by a fire communicated froni an engine operated by defendant upon its road, in passing the property of plaintiff in controversy, then you are instructed that defendant is liable to plaintiff for the reasonable value of the property destroyed, if any, and your verdict will be for the plaintiff, although you may believe there was no negligence in the management of the engine and train at the time of the fire.”

At the request of the defendant the court gave instructions numbered 1, 2 and 3, which are as fol-. lows:

“1. Yon are instructed that in this case the plaintiff claims that the brick plant was set on fire by sparks or fire emitted from one of the engines of the Kansas City Southern Railway Company; therefore before you can find a verdict in favor of plaintiff, you must find that the fire was started in that way. Even if yon should believe that the fire was started from Some locomotive, yet if it was not from one of the engines of the Kansas City Southern, plaintiff is not entitled to recover.
“2. Yon are instructed that it is charged that the fire in this case was started from sparks of fire emitted from a locomotive engine belonging to the Kansas City Southern Railway Company. Before, under any circumstances, the plaintiff is. entitled to a verdict at your hands, you must find that the fire was actually so started. If it was started in any other way, then the plaintiff is not entitled to recover, and your verdict should be for the defendant.
“3. You are instructed that it is your duty to try this case and to decide it precisely as you would a case between two individuals. The fact that the defendant is a railway company should make no difference whatever with the jury. You should base your finding solely on the testimony of the witnesses, the facts and circumstances in evidence and the inferences to be drawn therefrom, without regard to who is plaintiff or who' is defendant. In arriving at your verdict, all of the instructions, though read to you by opposing counsel, should be considered together, for all of them are the court’s instructions, and declare to you the law by which you are to be governed.”

With the exception of other formal instructions as to the number of jurors who were authorized to return a verdict and the form of the verdict, the instructions herein were the only ones given by the court.

The cause was submitted to the jury upon the evidence and the instructions of the court and they returned a verdict finding the issues for the 'defendant. A timely motion was filed by the plaintiff to set aside the verdict and praying that a new trial might be granted, which was by the court taken up and overruled. From the judgment of the trial court rendered^ upon the, verdict returned by the jury the plaintiff in due time and proper form prosecuted its appeal to this court, and the record is now before us for consideration.

OPINION.

The record in this cause presents but one proposition for our consideration, that is, whether or not the appellant, having tried this cause upon a certain theory, is in a position to ask for a reversal of this judgment predicated upon a theory which was never suggested during the progress of the trial.

We have carefully examined the disclosures of the record as to what occurred during the trial of this cause, and it is manifest from such record that this cause was tried by the plaintiff upon the theory that the fire which destroyed its brick plant emanated from sparks emitted from an engine attached to one of the freight trains of the defendant and at the time was being operated by the employees of the defendant upon its tracks which passed by the brick plant. That this is the theory is made manifest by the testimony introduced by the plaintiff, all of which is emphasized by-asking but one instruction predicated upon the theory as herein suggested.

The only testimony offered by the plaintiff which reasonably points to the origin of the fire was that of witness Trapp. His testimony was that this fire oo curred between ten and eleven o’clock; that there was a freight train drawn by an engine passed by this plant over the tracks of the Kansas City Southern Railway Company; that he saw sparks and cinders emitted from such engine and very shortly thereafter the fire broke out in the brick plant of the plaintiff. While this witness was unable to tell the name inscribed upon the engine or the number of the engine, he did say that he noticed the Kansas City Southern and did not know of any other trains running over the tracks. Witness A. B. McBeth testified for the plaintiff that trains frequently passed by this brick plant during the day, but referring to-the morning of this fire he said, “I cannot say whether I saw any freight trains passing except the Kansas City Southern;” and he further testified that he was unable to call to mind any freight train passing that morning except the Kansas City Southern. John W. Taylor, a witness for the plaintiff, while he was not there at the time of the fire, was familiar with the operation of the trains passing the brick plant of the plaintiff over the tracks of the defendant’s railway, and he says that the Kansas City Southern seemed to have a regular time for transfer from about 10 to 10:15 from the east bottoms to the west bottoms. Upon inquiry as to what kind of a transfer it was, he answered that it was freight, and speaking of the time that the Kansas City Southern took charge of the line, he says there was no freight handled by any other road; and he further says that that transfer of freight by the Kansas City Southern was pretty regular about 10 o’clock, and had been pretty regular for about a year before the fire. He further stated that there was a regular transfer of freight every day by the Kansas City Southern. Witness Robert Campbell, who was the engineer in charge of the engine and boiler room in the plant of the plaintiff which was destroyed by fire, testifies about a train passing upgrade puffing very freely, and stated that it was one of the usual trains. He further testified that the first fire he noticed was about ten minutes after this train passed. His testimony is in keeping with that of Taylor, who speaks of the regular transfer of freight trains passing this plant about 10 or 10:15. It is also in harmony with Trapp’s testimony that this was a freight train and passed between 10 and 11 o’clock, and shortly after the passing the fire occurred in the brick plant. There is an entire absence of any testimony showing the emission of any sparks or cinders, except the one drawing this freight train that witness Trapp speaks about. Taylor says that no one except the Kansas City Southern was handling freight and that they had a regular time for such transfers, and the usual train referred to by witness Campbell evidently referred to the transfer of freight as mentioned by witness Taylor.

But aside from the testimony as offered by the plaintiff tending to show that the plaintiff relied upon a recovery by reason of the showing that the fire emanated from an engine actually operated by the employees of the defendant, the Kansas City Southern, we have such theory emphasized by the instruction requested by the plaintiff. This instruction told the jury substantially that if they found that the plaintiff was the owner of the property described in evidence and that such property was destroyed by fire communicated from an engine operated by defendant upon its road, in passing said place, provided you find such property was destroyed by a fire communicated from an engine operated by defendant upon its road in passing the property of plaintiff in controversy, then you are instructed that the defendant is liable.

We are of the opinion that this instruction settled this proposition beyond all controversy. That this cause was submitted to the jury upon the theory on the part of the plaintiff that if it was entitled to recover at all, it was by reason of a fire being communicated from an engine which was actually being operated by the defendant upon its tracks, which passed the plaintiff’s plant, there seems to be no room for doubt. Now, while it may be true that under the provisions of section 1060, Revised Statutes 1899', the defendant could be held liable for damages occasioned by the escape of fire from engines being operated by other railroad companies, who were permitted to use the tracks of the defendant, yet we take it that the plaintiff clearly indicated to the court, by the request of this instruction, the grounds upon which it predicated a right to recover, and we are unwilling to say that ■ the plaintiff can convict the court of error when it simply followed the suggestions of the plaintiff and confined the issues to those marked out by the plaintiff’s instruction, and limiting the right to recover to the issues thus made and pointed out by the plaintiff. In other words, the plaintiff should not be permitted to say to the court, “We asked a recovery upon the theory that this fire originated from an engine actually operated by the defendant, and procured from the court, in accordance with such request, a declaration of law upon that theory,” with not even the slightest suggestion that it predicates a right of recovery upon any other theory, and then after an adverse finding upon such issue, for the first time suggest in its motion for a new trial that it had a right to recover upon an entirely different theory. Conceding for the purposes of this case that the plaintiff under its petition had a sufficient basis to offer testimony that the fire which destroyed the plant of the plaintiff originated from engines being used by other railroad companies upon the tracks of the defendant, yet in our opinion, it was incumbent upon the plaintiff to present such theory to the trial court during the progress of the trial, and by appropriate instructions at the close of the evidence.

That learned counsel for plaintiff, from the filing of the petition until the return of the verdict in this cause, never sought a recovery for the damages by reason of this fire upon any other theory than that the fire originated from one of the engines actually operated by defendant, in our opinion is too plain for discussion. If there was sufficient evidence that this fire originated from engines other than those operated by the defendant, however, upon defendant’s tracks, then it was the plain duty of the plaintiff to request the court to submit that theory to the jury, and having failed to do so, but requesting a declaration of law which defined and limited its right of recovery to one single theory, then in our judgment, the plaintiff is in no position to urge that the court committed error in giving the instructions requested by the defendant, which were simply counter instructions limiting the right of recovery to the theory as suggested by the instruction given for the plaintiff.

The proposition confronting us upon this appeal is no longer an open one in this State. It has repeatedly been announced by this court that the case reviewed by the appellate court will be reviewed upon the theory adopted by the parties in the trial of the cause, and, as was said by this court in Hill v. Drug Co., 140 Mo. l. c. 439, “It can now be announced as the fixed policy of our practice that parties litigant will be confined to the course of action they have adopted throughout the progress of the trial, even though that action be inconsistent with the course to have been pursued as indicated by the pleadings on file.”

Again, it was said in Campbell v. Railroad, 175 Mo. 161: “Both parties tried the case on the theory that it was necessary for the plaintiffs to show that the defendant had agreed to he ‘bound by the ordinances of the city governing the running of street cars before it could be held liable for a violation of the same; therefore, whether that is a correct theory or not, neither party is in a position to question it in this case.”

The St. Louis Court of Appeals, in Glaser v. Rothschild, 106 Mo. App. 418, thus stated the rule upon this proposition: “Appellant, in his brief on motion for rehearing, contends that, notwithstanding plaintiff was on the premises of respondent as a mere licensee when hurt, yet by virtue of section 6435, Revised Statutes 1899; it was the duty of respondent to surround the well-hole into which' appellant fell, with strong guard rails. This statute was not relied on at the trial, but the cause was tried by the appellant on the theory that respondent was guilty of negligence as at common law; having tried the case on that theory, appellant cannot shift his position on appeal by calling to his aid a statute which he neither specifically pleaded nor relied on at the trial.”

In Hamilton v. Railroad, 123 Mo. App. 619, the Kansas City Court of Appeals had in hand a case in which plaintiff charged that he received a fall from the top of a car and claimed that it was caused by the defendant’s negligence in furnishing a defective brake. The trial in the lower court proceeded upon that theory. The plaintiff failed of a recovery; however, afterwards it was urged that he had a cause of action under the Federal Safety Appliance Act. That court, in treating of that proposition, thus very clearly and correctly stated the law: “It is a part of plaintiff’s contention now that he has a case under an Act of Congress known as the ‘Federal Safety Appliance Act.’ He claims that though that statute was not, in terms, pleaded, and that though the petition was not drawn with a view to that act, yet, it sets forth facts which fairly put the case -within that statute. It is enough to say of this contention that no- case was attempted to be made under that statute, that no issue was submitted to the jury in respect thereto, and, so far as the record shows, there was no thought, prior to or at the trial, of making a .case under that statute. It is familiar practice that the appellate courts of this State refuse to permit the parties to try any other case on appeal than that heard and determined in the trial court.”

We see no necessity for pursuing this subject further. The doctrine is firmly settled by the appellate courts of this State that they will simply review the case upon the theory upon which it was tried in the lower court. Emphasizing how closely this court adheres to this rule, we direct attention to the ease of Hilz v. Railroad, 101 Mo. 36. In that case it was urged in this court that an issue to which the evidence and instructions were directed was not in fact properly' made an issue. The court in disposing of that complaint used this language: “The causé having been so tried, both parties, by the evidence and instructions having treated the issue as properly made, both parties having asked its determination and submission to the jury, the objection that there was no such issue, we think, cannot now be made,” citing Bettes v. Ma-goon, 85 Mo. 580; Thorpe v. Railroad, 89 Mo, 650; Loomis v. Railroad, 17 Mo. App. 340:

If the adjudications as heretofore indicated are to be longer recognized as correct rules for the guidance of the courts of this country, then we see no escape from the conclusion that the plaintiff in the trial court predicated its right of recovery upon the theory that the fire was set out by a Kansas City Southern engine, and that it would be manifestly erroneous, as. well as unjust, to sustain plaintiff’s contention that this cause should be reversed and a new trial granted for the reason that the cause might have been tried upon some other theory in the lower court. There was no error in the instructions complained of given at the request of the defendant. As before stated, they were simply counter instructions to the one requested by the plaintiff, which was given, and confined and limited the recovery to the issue as pointed out by the plaintiff in its instruction. The plaintiff, by its instruction numbered 1, plainly marked out the theory upon which it sought a recovery as against this defendant, and by that theory it must stand or fall in this court.

We have given expression to our views upon the only proposition confronting us as disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.