ALEXANDER v. MCNALLY. (Kansas City Court of Appeals. Missouri. May 8, 1905.)

CARRIERS-LOSS OF GOODS-ACTION-BURDEN OF PROOF EVIDENCE.

1. In an action against a carrier for loss of goods before delivery, the burden is on defendant to account for the loss.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 578–579.]

2. Where plaintiff delivered a valise to a carrier for delivery to the station agent at a railroad station, and the carrier deposited the valise on the station platform, and left it there, he was liable in an action for its loss, although the station agent knew that the carrier always left baggage on the platform.

Appeal from Circuit Court, Livingston County; Jno. P. Butler, Special Judge.

Action by Julia Alexander against J. S. McNally. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Frank Sheetz & Sons, for appellant. J. M. Davis & Sons and Paul D. Kitt, for respondent.

ELLISON, J. The defendant is a common carrier operating transfer vehicles in the city of Chillicothe. Plaintiff instituted the present action, charging that she delivered to him her valise containing valuable articles of baggage, with instructions to take the same to the station of the Wabash Railway in said city, and there deliver it to the station agent; that while the defendant undertook to do so, yet he failed, and, instead of delivering it to the agent, he placed the same on the station platform, outside of the building, and left it without any one in charge thereof; that in consequence of such action the valise and contents were lost or stolen, and have never been recovered. The trial court gave a peremptory instruction directing a verdict for the plaintiff, and defendant appealed.

It appears that plaintiff, a young lady residing in Gallatin, Daviess county, had been visiting the family of Mr. Rucker, at Chula, in another county. She left there for her home, and, in company with Mr. and Mrs. 87 S.W.-1

Rucker, took the Milwaukee & St. Paul train at Chula for Chillicothe, where she would transfer across the city to the Wabash Railway, which passed through her home place. Mr. Rucker telephoned defendant to meet him at the latter place with a carriage at the station of the Milwaukee Road, which he did. There, Mr. Rucker delivered plaintiff's check or valise to defendant, and then. with his wife and plaintiff, got into defendant's carriage, which took Mr. Rucker to the hotel, and then carried the ladies to a friend's house in another part of the city. Plaintiff was expecting to meet her father at Chillicothe, and did not take the Wabash train for her home until the next evening. The articles lost and their value, as alleged by plaintiff, were conceded to be correct, and the only question in the case is whether the evidence made an issue of fact, so as to entitle defendant to the opinion of the jury.

The evidence in behalf of each party showed a delivery of the valise to defendant as a carrier, and there is no dispute as to its loss. In such circumstances, it devolved on defendant to account for it. Hill v. Sturgeon, 28 Mo. 323, 327; Read v. Ry. Co., 60 Mo. 199, 206. To properly account for it, he should have shown a delivery to the agent at the Wabash Station. The evidence to show such delivery, as given by defendant himself, was that he took it to the station and deposited it on the platform outside of the building, among a large number of people, and there left it, without putting it in charge of any one, and not knowing what became of it. That did not show a delivery to the agent or any other person. On the contrary, it shows an abandonment.

If we should concede that a custom of the Wabash Railway Company to receive hand baggage by having it merely deposited on the platform outside the station building would excuse and justify defendant in so leaving the valise in controversy, defendant could not be benefited by such concession, for he failed to show such custom. On that head, defendant stated that the platform was the place where he always put hand baggage. But that by no means shows a custom of

the company to receive it there. For aught that can be known from the evidence, the company may have frequently cautioned him against such careless conduct. Defendant was asked if the station agent knew that he always left hand baggage on the platform. On plaintiff's objection he was not allowed to answer that question. For the purpose of a proper consideration of the peremptory instruction, we will assume that he would have answered "Yes." Yet that, without more, would not have shown consent on the part of the agent to receive it there for the company. It may have been left in that way against the protest of the agent. Again, the agent may have known that defendant placed hand baggage on the platform for those intending to become passengers, and with intent to himself deliver to such persons, and not to the company. The evidence, therefore, of defendant himself, not only fails to excuse, but it condemns, him.

It was a part of defendant's contention that he did not know the valise belonged to plaintiff; that the check for it and the direction to take it to the Wabash Station came from Mr. Rucker. The mere mistake of defendant as to who was the true owner would not ordinarily affect his duty in the premises. But he seeks to make it important in this particular case from the consideration that, as stated in his brief, he had often taken Rucker to the Wabash Station, and placed his baggage on the platform, and that, supposing the baggage in this instance was Rucker's, he did with it as he had done before. But the evidence falls short of sustaining such position. It does not show he had ever handled baggage for Rucker. He merely stated that he had frequently taken Rucker himself to the station, but said nothing as to baggage.

Considering the case from the evidence in defendant's behalf, in connection with the admitted facts, it appears that he received the baggage as a carrier, and that he took it to the railway station and deposited it on the platform, without delivery either to the agent or to the party who intrusted it to him. He has wholly failed to justify or excuse such action, and consequently the trial court could do nothing less than direct a verdict for the plaintiff.

Defendant insists that even when testimony is all one way in a plaintiff's behalf, yet when there is a denial by the answer the evidence is for the jury, and is addressed to the consideration of a jury, and should be determined by that body, since they have a right to say whether they believed it. Such question was considered by us in Bank v. Hainline, 67 Mo. App. 483, and other cases since. But that question does not present itself here, for here the evidence in defendant's behalf, in connection with facts admit ted, as before stated, make out plaintiff's

case.

We find nothing in the point made as to king out parts of the answer, since the

evidence developed the whole case, and, as already stated, the evidence of the defendant himself made it necessary to direct a verdict.

The judgment is affirmed. All concur.

STRANGE v. CITY OF ST. JOSEPH. (Kansas City Court of Appeals. Missouri. May 8, 1905.)

MUNICIPAL CORPORATIONS DEFECTIVE SIDE. WALKS INJURIES-NOTICE-PLACE-DESCRIP

TION-NEGLIGENCE-QUESTION FOR JURY.

1. Plaintiff fell and was injured on a city sidewalk constructed along an embankment at a point where the ends of the boards were laid against the bank, or so close thereto that there was no way for descending mud to pass from the bank, except over the walk. Plaintiff fell while attempting to pass over the walk when melting snow and ice had converted the mud on the walk into a slippery mass. Held, that whether the city was negligent in permitting earth to so accumulate on the walk as to become dangerous when turned into mud by melting snow or ice was for the jury.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 17471750.]

2. A notice of injuries on a city sidewalk, reciting that the accident occurred on "a certain sidewalk situated on King Hill avenue, on the east side thereof, at a point about the center of Massachusetts avenue, if said Massachusetts avenue continued on over and across said King Hill avenue, the place being in front of the residence of Dick Johnson," sufficiently described the place of the injury.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1702.] Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by Elizabeth Strange against the city of St. Joseph. From a judgment for plaintiff, defendant appeals. Affirmed.

James M. Wilson and G. L. Zwick, for appellant. James W. Boyd, Burroughs N. Mosman, and W. H. Sherman, for respondent.

ELLISON, J. The plaintiff fell on one of the defendant's board sidewalks, and was injured. She brought this action, and recov ered judgment in the trial court.

It appears that the walk was laid on a street which had been graded by cutting down, which left elevations of earth near and just outside the walk. Rains and melting snow and ice washed dirt down upon the walk, and it had been left to accumulate by the city. In dry weather the earth was no more than a mere obstruction; but in wet weather, whether from rains or melting snow, it would become mud, shoe-top deep, and, on account of the nature of the dirt, was at such times very slippery. The plaintiff fell while attempting to pass over the walk in the month of January, when melting snow and ice had converted the obstruction into a slippery mass of mud. A defective or worn board at the place where plaintiff fell caused a greater accumulation of mud. The ends of the boards were laid against the embank

ment, or so close thereto that there was no way for descending mud to pass from the embankment, except over the walk. It was also shown that occasionally, when wet, large masses of earth would fall upon the walk. We held in Milledge v. Kansas City, 100 Mo. App. 490, 74 S. W. 892, in a case not so strong against the municipality as this, that it was a question for the jury whether, in such circumstances, it was negligence to permit earth to accumulate on the walk so as to become dangerous to pedestrians when it had been turned to mud by rains or melting snow or ice. The case is not one of a mere slippery walk, made so by being wet, which cannot be provided against. It is a street allowed to become obstructed with earth so that when wet it became a dangerous place.

Under the evidence in the cause, there was no error in plaintiff's instruction No. 1, concerning the city's notice of the condition of the walk. We do not regard the instruction as assuming that the city had notice, in view of the evidence on that subject, and reading the instruction in connection with No. 2, where the jury are told that defendant's liability depended upon whether it had knowledge of the defect long enough before the accident to have removed it. The instructions, as a whole, presented the case fairly for each party, and they afford no Just cause of complaint.

Objection is taken to the notice given by plaintiff to the city, on the ground that it did not describe the place of injury, and of a defective jurat attached thereto by the officer before whom plaintiff made oath. We regard the notice as in all respects sufficient for the purpose which the statute intended to accomplish. Reno v. St. Joseph, 169 Mo. 642, 70 S. W. 123; George v. St. Joseph, 97 Mo. App. 63, 71 S. W. 110.

The specific objections made seem to be without merit. The place is described as “a certain sidewalk situated on King Hill avenue, on the east side thereof, at a point about the center of Massachusetts avenue, if said Massachusetts avenue continued on over and across said King Hill avenue, the place being in front of the residence of Dick Johnson." The objection to the jurat is much more technical than substantial.

The whole record discloses that we are without authority to interfere, and we accordingly affirm the judgment. All concur.

cause of the falling of a portion of the embankment on plaintiff.

2. A servant working on a shelf of earth does not assume the risk of a fall of an embankment rising above the shelf, where the natural danger of such a fall is increased by peculiar conditions, of which the master negligently fails to warn the servant, and of which the latter does not know, and which he cannot discover in the situation in which he is placed.

3. In an action for injuries to a servant, where there is evidence that the place where the servant was working was inherently dangerous, owing to a change which it was undergoing from the work performed upon it, the court should not unqualifiedly charge that it is the master's duty to furnish the servant a safe place to work.

4. A servant working on a shelf of earth assumes the risk of inherent dangers arising from the natural tendency to scale of the embankment arising above the shelf, and from changing conditions in the place where he is working, brought about by the performance of the work itself.

5. The right of a servant to recover for injuries sustained by him should be restricted by instructions to the specific act of negligence charged against the master.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Joseph B. Gibson against Henry Freygang and another. From a judgment for plaintiff, defendants appeal. Reversed.

A. L. Berger and Harkless, Crysler & Histed, for appellants. O. H. Avery and Elijah Robinson, for respondent.

JOHNSON, J. Action for damages for personal injuries alleged to have been sustained by plaintiff in consequence of defendants' negligence. Plaintiff recovered judgment in the sum of $3,590, and defendants appealed.

Defendants contend that, under the facts disclosed by the evidence, the case should not have been submitted to the jury. Evidence was introduced by plaintiff showing the following state of facts: Plaintiff at the time of the injury, February 8, 1903, was a common laborer in the service of defendants, who were contractors engaged in constructing the approaches and abutments for a highway bridge crossing the Missouri river at St. Charles. Earth for filling was being obtained from the top of an embankment situated in the city, on the west side of Second street, near Adams. The elevation of the bank extended some sixty feet above the street level. From the height of about 50 feet to the top the bank had been removed for a distance of 8 or 10 feet, leaving a level shelf or bench, from which to the top, a distance of 10 feet, the bank rose perpendicularly. The method employed was as follows: Workmen, provided with shovels, picks, and crowbars, worked on the top, detaching earth and throwing it down upon the bench. Workmen stationed there in turn shoveled it into the street below, from which place it was carried away by others for use. Plaintiff had not worked on this bank prior to the day of his injury. On the morning of that day he, with two others, was stationed by

the foreman to work upon the bench. After shoveling there for several hours, he was suddenly overwhelmed by a large quantity of earth which became detached from the bank near its top and fell upon him. The resultant injuries were so severe that no claim is made of an excessive verdict. There is some dispute even among plaintiff's witnesses relative to the operations of workmen at the top immediately preceding the accident. Some say the men were at work there, while others contend they had all been withdrawn about 30 minutes before. In the work done that morning no earth had been detached with crowbars, but it was loosened and thrown from the top to the bench with pick and shovel. The negligence complained of is involved in the act of sending plaintiff to work in a place made extrahazardous by peculiar conditions, of the existence of which defendants knew, and of which they failed to inform plaintiff, who had no knowledge of them, and who was not in a situation to become aware of their presence. It appears that the ground had frozen during the preceding night, and in the morning several seams or cracks, running parallel with the line of the bank, were plainly observable. At the top a large slab of earth was separated from the mainland by one of these seams, which extended to a depth of three or four feet. One of the workmen was ordered by the foreman to throw this slab over with his crowbar, but refused to do it, because of his fear of falling over. This workman afterwards saw the accident, and testified that it was this particular slab that fell upon plaintiff. Further, it was shown that plaintiff, from his position, could not see this seam upon the top, did not know it was there, and nothing appeared upon the face of the bank indicating any defect therein. Defendants did not apprise plaintiff of these conditions at the top.

We cannot concur in the view of defendants that the seam is not made to appear as the proximate cause of the accident. Under the facts disclosed, which we accept as the facts of the case for the purpose of this discussion, the conclusion is irresistible that the severance by the seam of the attachment of the slab to the main body, leaving it without support except at its base, is what caused it to fall.

Nor can we sanction the claim that the fall of earth was one of the dangers naturally incidental to the work, and therefore a risk impliedly assumed by plaintiff. The dereliction of defendants consists in their failure to warn plaintiff, when they set him to work there, of the peculiar conditions which increased the natural danger. A servant does not by implication of law agree to assume the risk of injury from dangers known to the master, but unknown to the servant, and undiscoverable by him in the situation in which he is placed, unless the master informs him of such perils. The servant must

be given an opportunity to observe the extent of the particular dangers he is called upon to face, or be informed of them, if the master would be released by implied contract from liability on their account. It is the duty of the servant to serve and obey. It is not supposed, when given a task to perform, that he will, on his own motion, consume his master's time in making comprehensive inspections to detect dangers. All that is required of him is that he use his senses in the position assigned him, and, as to dangers not to him apparent, and not inherent to the employment, he has the right to rely upon his master's judgment and humanity for the safety of his position.

It was proper to submit the case to the jury.

Instructions numbered 1 and 2 given on behalf of plaintiff are as follows:

"(1) The jury are instructed that it was the duty of defendants to use every reasonable precaution to avoid exposing the plaintiff to danger, and to use ordinary care and diligence to provide him a reasonably safe place to work; and if the jury believe from the evidence that the embankment on which plaintiff was working, as disclosed by the evidence, was insecure and dangerous, and was liable to fall upon plaintiff while working on the same, at the place where plaintiff is shown to have been working at the time of the accident, and the defendants or their foreman, if they had a foreman in charge of their work there being done, was aware of the dangerous and unsafe condition of such embankment; and if the jury believe that any overseer, superintendent, boss, or foreman of the defendants, having power and authority to manage and control plaintiff, ordered or directed the plaintiff to go to work on said embankment, and to do the work he was engaged in doing when injured, if you believe from the evidence he was injured, and that while he was so engaged said embankment fell upon him and injured him

then he is entitled to recover in this case, unless the jury further believe from the evidence in the case that the plaintiff was aware of the condition of the embankment where he was working, and the danger from working there was so apparent that a person of ordinary care and prudence would not have worked there; and by 'ordinary care and prudence' is meant such care and prudence as an ordinarily careful or cautious person would exercise under the same or similar

circumstances.

"(2) The court instructs the jury that it was the duty of the defendants to exercise reasonable care to furnish plaintiff a reasonably safe place at which to work while in their employ; and if you believe from the evidence in the case that they failed to exercise such care, and put plaintiff to work at a place which was not reasonably safe, and if plaintiff was injured in consequence of being thus put to work by defendants, or their