Opinion · Molaw Missouri
STONE v. NEW YORK, C. ST. L. R. CO., 249 S.W.2d 442 (Mo. 1952)
249 S.W.2d 442
- Type
- Opinion
- Court
- Molaw Missouri
- Jurisdiction
- Molaw
- Date
- 1952-04-14
- Topic
- general
STONE v. NEW YORK, C. ST. L. R.
Citator
UpLaw has not yet analyzed STONE v. NEW YORK, C. ST. L. R. CO., 249 S.W.2d 442 (Mo. 1952). The absence of a flag is not a finding that it is good law.
STONE v. NEW YORK, C. ST. L. R. CO.,249 S.W.2d 442(Mo. 1952)
STONE v. NEW YORK, C. ST. L. R. CO.
No. 42803.
Supreme Court of Missouri,
Division No. 1.
April 14, 1952.
Motion for Rehearing or to Transfer to Court En Banc Denied June 13, 1952.
As Modified on Court's own Motion June 13, 1952.
Tyree C. Derrick, Karl E. Holderle, Jr., St. Louis, for respondent.
[2] Plaintiff's injuries resulted from a "wrenched" back. They consisted of a herniated disc (later excised) and damage to two lower vertebrae, the causa equina and the right peroneal and sciatic nerves, and a "dropped" right foot.
[3] Defendant's first assignment is that the trial court erred in failing to sustain its motion for a directed verdict. As we have concluded that plaintiff did not make a submissible case under the Act, we need not rule the other matters briefed and argued here.
[4] Before describing the circumstances under which plaintiff sustained his injury, we should state that the record does not contain evidence upon which to base any inferences either that defendant was negligent or that plaintiff's injuries resulted from defendant's alleged negligent acts or omissions. The general principles involved are also first stated.
[5] Under the Act, the railroad is not an absolute insurer of its employees; the Act imposes liability only for injuries due to negligence. Wilkerson v. McCarthy,336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. Negligence under the Act is determined by Federal decisional law. Urie v. Thompson,337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. The employee must show that the railroad was negligent and that such negligence was the proximate cause, in whole or in part, of the injury. Tennant v. Peoria Pekin Union Railway Co.,321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Tiller v. Atlantic Coast Line R. Co.,318 U.S. 54, 63 S. Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Atchison, T. S. F. Ry. Co. v. Toops,281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896.
[6] "Negligence cannot be based merely upon what is possible to occur. `Negligence which imposes liability must result from a faulty or defective foresight. Negligence is predicated on what should have been anticipated, rather than what happened.'" Williams v. Terminal R. Ass'n of St. Louis, 339 Mo. 594,98 S.W.2d 651, 655. The standard is "what a reasonable and prudent person would have done under the same circumstances." Wilkerson v. McCarthy, supra [336 U.S. 53, 69 S.Ct. 417]. "Foreseeability" depends upon the danger to be avoided and consequences reasonably to be anticipated. Urie v. Thompson, supra.
[7] Generally, determination of a defendant's negligence is for the jury. "To the maximum extent proper, questions in actions arising under the Act should be left to the jury". Tiller v. Atlantic Coast Line R. Co., supra [318 U.S. 54, 63 S.Ct. 451]. See Tatum v. Gulf, M. O. R. Co., 359 Mo. 709,223 S.W.2d 418. Negligence issues must be submitted if the "evidence might justify a finding either way on those issues." Wilkerson v. McCarthy, supra. "Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear." Lavender v. Kurn,327 U.S. 645, 66 S.Ct. 740, 744, 90 L.Ed. 916. See Tatum v. Gulf, Mobile O. R. Co., supra; Nance v. Atchison, T. S. F. R. Co., 360 Mo. 980,232 S.W.2d 547. And "* * * it is the trial judge's function to determine whether the evidence in its entirety would rationally support a verdict for the plaintiff,Page 444assuming that the jury took, as it would be entitled to take, a view of the evidence most favorable to the plaintiff." Concurring opinion of Mr. Justice Frankfurther in Wilkerson v. McCarthy, supra. The appellate court neither weighs the evidence nor determines the credibility of the witnesses. Lavender v. Kurn, supra. "The rule as to when a directed verdict is proper, heretofore referred to, is applicable to questions of proximate cause." Brady v. Southern Ry. Co.,320 U.S. 476, 64 S.Ct. 232, 236, 88 L.Ed. 239.
[8] Plaintiff, aged 44 when injured, had been either a farmer or a common laborer all his life. He began working for defendant in November, 1948; was on the "extra gang" for five or six months; was then transferred to the section crew. Slagle was the "boss" and Stoughton was "straw boss" or Slagle's assistant. Other members of the crew were Hopkins, Fish and Denny.
[9] Plaintiff was injured on or about May 2, 1949, while working on defendant's Y track at Argus, Indiana. This Y is a connecting track between the Lake Erie (east-west) and the Nickel Plate (north-south) main lines. The crew was "trimming," which for a track under ballast (as was this Y), consists of: digging out around the end of the tie, under the tie and in the "crib" on each side. The rails are jacked up to relieve the pressure on the tie; the spikes are pulled and the plates "knocked off"; the tie is "jerked" and sometimes the trench is deepened. The tie is pulled out, "usually always with two men working together pulling" with tongs. "It generally pulls right out if there is nothing wrong." When the two cannot pull it out, the rails are jacked higher. According to plaintiff, "sometime they raise the track about an inch, sometimes maybe a little more." If the two cannot pull the tie, efforts are made by the two pulling and a third man "prying." If that doesn't work, a fourth "mauls" the other end of the tie while the two pull and the third "prys." If there is an old spike protruding downward from the tie, "it usually takes three or four men" to pull the tie. "It is awful hard" for two men, without someone prying and someone mauling, to pull such a tie.
[10] Plaintiff and Fish were pulling ties with tie tongs. Plaintiff had often used tie tongs and a "lot of times" he had pulled out ties by himself. Plaintiff came to a certain tie. "I practically maybe took hold of the tongs and pulled it myself. I don't know for sure, anyway, I know Fish had to get on the tie with me, and we both couldn't pull it, and Stoughton was around somewhere, we asked him; we told him about the tie; it was hard to come out or something [and then, plaintiff later admitted, he asked for "more jack" and Stoughton jacked up the rails higher]: so he [Stoughton] picks up a bar, walks over to the other end;`maybe,'he says to me,`you are not trying, you ain't pullinghard enough.'So he puts the tie, fixed a bar under the end of the tie, he got a `prizen hold' over the rail and give us a lift. We give a pull and it wouldn't come, * * * the tie seemed loose but something seemed to be holding it * * * and he [Stoughton] said,`you are not pulling, if you can't pull that tie I willget somebody on both tongs that can.'* * Well, we both got back down and give a hard pull with him a prying and I hurt my back. * * * I just raised up and turned the tongs loose. I guess I was pretty mad. I said, `I am never going to pull on a tie like thatthat hard again.'* * * I said, `I am not pulling on no damned tiethat hardany more.' * * * I didn't work any more on that tie. * * * I just walked up the track, I was kind of bent over, I had a pretty severe pain so I walked away and rubbed my back, got straightened up a little and directly back, I would say, ten or fifteen minutes, I came back on the job." Plaintiff worked the rest of that day and continued to work with the crew regularly, outside of two days, until June 7, 1949.
[11] The tongs were "not defective, and didn't slip off or break." Plaintiff did not fall down and nothing struck him — "it wasjust the force of the pull, the jerk."Fish, who was pulling with him, "wasn't laying down on the job." Fish didn't give any "unexplained" or "unexpected" jerk. Thejerkthat plaintiff and Fish made"was ordinarily enough to pull a tie[without a spike in it]out."Page 445
[12] While plaintiff was away, the tie was pulled by two men pulling, one "prying" and one "mauling." It had a five or six-inch spike extending from its bottom. Plaintiff had never pulled on such a tie before, although he had seen them.
[13] Fish had been a section hand for defendant for 28 or 30 months. He and plaintiff had "pulled quite a few ties together" that day. Generally, one man alone was sufficient on the tongs, but "we doubled up and the tie wouldn't come. We would jerk it, it might move an inch I would say at a time and Mr. Stone asked for more jack. * * * We had the rails off the tie, you have to have a jack under each rail." The rails were probably 3/4 inch up off the tie. Stoughton gave the jacks another notch when plaintiff asked for it. "We still couldn't pull it. * * * Mr. Stone asked for more jack and we couldn't give it any more, had it high enough then, and so we doubled up and Dick [Stoughton] came down with a bar and put it over the south rail and pried on the other end, and bumped it as we jerked and it still couldn't come. So Prock [plaintiff] and I gave it a big jerk, that is when he quit and said he hurt his back. * * * Dick [Stoughton] claimed he"wasn't pulling hard enoughand oh, they kinda' got into it back and forth. * * * Dick said he [plaintiff]wasn't pullinghard enough, if he couldn't pull to get to hell off of it and hewould get somebody that would.* * We gave it another pull. * * * I was pulling just as hard as he was and there was no jerk or jar that I noticed."
[14] Fish had had experience of that kind. "It is nothing unusual to have a spike sticking through a tie. * * * Itusuallytakes two orthreemen to try and get a tie like that out. * * * They most generally hooktwomen on them. * * *" Also, generally, the trench is dug deeper, "kind of a V shape and let that spike not hit anything. * * * We would turn it sideways if the ditch is deep enough." However, he did not believe that that could be done on that particular tie.
[15] Hopkins said that Stoughton "told Mr. Stone topull harder.Mr. Stone told himhe was pulling hard as he could.Mr. Stoughton said,`If you can't pull any harder, I will getsomebody that will.'"Hopkins had never pulled a tie with a spike in it. But he had seen such ties that. "more than oneman had to work on."
[16] Stoughton described the method (summarized above) of removing ties from a track under ballast. On two or three occasions they had trouble removing ties with spikes in them at the Y; he helped pull two such; it tookthreeor four men to get them out. Stoughton did not recall the incident to which plaintiff and Fish had testified. He had observed nothing unusual that morning about the manner in which plaintiff did his work. He denied ever having said on that or any other occasion, "if you can't pull on that tongs harder, I will get somebody on there who can." He did not know that plaintiff "was hurt until some time in June, but said that if plaintiff was hurt while working at the Y, it was about the time when the crew had trouble getting out two or three ties with spikes in them. He recalled three or four instances wherein plaintiff had asked him to jack up the rails a little higher. He did not recall any argument when they had trouble getting out a tie or when plaintiff jerked on a tie. He had had only one argument with plaintiff — when he reprimanded him for pouring ashes in the coal bucket at the car knocker's shanty, the car knocker having complained to Stoughton.
[17] Slagle, section foreman, was not present that day. He saw the tie afterward. In his experience, "it is very seldom you ever have one [a tie with a spike in it], we haven't had over three since I have been foreman * * * eleven years and a half." He had had occasion to pull such a tie "a few times, very seldom. * * * They don't know the spikes are in the ties till they get them out. If they pull hard, I have always told them * * * to dig the trench deeper.Threeor four men would not be necessary if they dig the trench deeper. * * * They know something was holding it or it wouldn't pull so hard."
[18] In his Instruction No. 1, plaintiff submitted three theories of defendant's negligence: ordering plaintiff to over-exertPage 446himself, failure to furnish sufficient manpower, and failure to jack the rails higher. Defendant denied negligence and submitted plaintiff's contributory negligence.
[19] Plaintiff showed when, where and how he wrenched his back and that the wrench caused his injuries. But did he make a submissible case as to either negligence or causal connection?
[20] Plaintiff's first charge of negligence was Stoughton's "order." In his brief, plaintiff says that the applicable portion of his Instruction No. 1 "required the jury to find that, if the tie couldn't besafelyremoved by the plaintiff with the exertion of the customary amount of force (which the defendant knew or should have known) the defendant nevertheless ordered and directed the plaintiff to exert anadditionalamount of force to accomplish the removal of the tie, then the jury could find that the defendant's order was negligent."
[21] We observe that the submission was not that the tie could have been removed withreasonablesafety, — of which, more anon. But was there any evidence from which it could be reasonably inferred that a reasonably prudent "straw boss" should have foreseen the possibility of plaintiff being injured as a result of the order? Plaintiff asserts that "there was sufficient evidence for the jury to reach a finding that Stoughton knew or should have known that Stone might be injured if directed to pull harder or exert more force." But there was absolutely no evidence from which the jury could have inferred that the tie could not have beensafelyremoved by plaintiff, Fish and Stoughton, with plaintiff pulling harder or exerting more force. In other words, there was evidence neither of actual knowledge nor "foreseeability" that plaintiff might be injured as a result of his compliance with the order.
[22] Plaintiff was strong, had the physical strength of the average section hand and was in good health. For four years he had performed the exacting work of a farmer and of a common laborer in industry and, for thirteen years, of a tool dresser and a driller in oil fields. During all this time he had sustained only three minor injuries. These "didn't amount to much" and he was never injured to an extent that he "couldn't work for a few days or a week or any length of time." He testified: "I have been sick * * * never had any serious illness" other than stomach trouble and "I got rid of that about fourteen years ago." His work for defendant was "heavy," involving use of physical energy. Apparently, he had been performing his work satisfactorily. He had been "working pretty steady, missed very few days." He had received one raise in pay and was in line for other raises. Stoughton (and apparently, the other section hands) had not observed anything unusual about the manner in which plaintiff did his work. Plaintiff had never complained to Slagle, Stoughton or the other members of the crew. Upon such evidence, Stoughton certainly cannot be charged with any actual or constructive knowledge that plaintiff could not "safely" pull harder or exert more force.
[23] Whether defendant was negligent hinges upon what reasonable prudence required Stoughton, under all the circumstances, to anticipate. So far as he knew or should have known, plaintiff was efficient, strong and in good health. The site was not unsafe; the instrumentalities were not inherently dangerous; the work was not hazardous; the tools were not defective. The usual and customary methods were followed. The record contains not even a suggestion that such methods were in any way dangerous or that it was "unsafe" to order a section hand to help pull a tie with a spike in it with more than the usual and customary force (as hypothesized in Instruction No. 1, although plaintiff's testimony was that he had not used more than his usual and customary force). We find no evidence upon which Stoughton could reasonably be charged with the duty of anticipating that plaintiff might be injuredin any wayby complying with the order. Compare Thompson v. Atchison, T. S. F. Ry. Co., 96 Cal.App.2d 974,217 P.2d 45.
[24] Plaintiff argues that Stoughton "had an obligation to determine what was holding the tie before giving an order to Stone to exert more force." The evidence was suchPage 447that the jury could have inferred that Stoughton should have known the tie had a spike in it. Even so, his order eitherwasorwas nota negligent one.
[25] Plaintiff says that Gulf, Colorado Santa Fe Ry. Co. v. Waterhouse, Tex.Civ. App.,223 S.W.2d 654, 660, is decisive. In that case, a section hand, an experienced workman and accustomed to doing manual labor in hot weather, sustained injuries as a result of becoming overheated while cutting brush on the afternoon of an "awful hot" or "really hot" day. It was held that the foreman's initial order to Waterhouse to cut brush was not negligence in that: while he did not set the pace of the work (i. e., he left them "free to adjust their efforts to the prevailing weather and their own physical capacities"), and while he could have anticipated that the members of his crew would become hot, "he certainly need not have anticipated that they would have become overheated and ill." ButafterWaterhouse complainedofthe effect of the workupon him, the foreman's subsequent order was a negligent one. "This proof referred to shows that Plaintiff told the foreman that he was becoming overheated, and the circumstances known to the foreman at the time, namely, the prevailing heat and closeness of the air, the arduous nature of Plaintiff's task, and thePlaintiff's physical condition,were enough to put the foreman upon notice that Plaintiff could not continue to do such work without becoming ill, even though he attempted to lessen his exertions and the foreman's [subsequent] order to Plaintiff to return to work was accordingly wrongful." (Our italics.)
[26] The Waterhouse case squarely fixes negligence upon facts contrary to those instantly involved. We quote: "The following statement from Doty v. Ft. Worth D.C. R. Co., 127 Tex. 521,95 S.W.2d 104, 105, supports our conclusion regarding the proof of both grounds of negligence established by the jury's findings: `(The foreman had the right to assume that he was dealing with a man in normal physical condition and capable of doing heavy work like that required of members of a bridge gang, and that such a man, knowing his own strength, would not push or pull beyond his capacity to endure. In the absence of a showing of knowledge on his part that Doty (the workman) was not in such condition, it cannot be said that there is any evidence that he failed to act as an ordinarily prudent person would have done under the circumstances, or that such a person, situated as he was, could have reasonably foreseen or anticipated injurious consequences to flow from the doing of the act.'"
[27] Stoughton had the right to assume that plaintiff was in normal physical condition and capable of doing his work; and that plaintiff, knowing his own strength, would not pull beyond his capacity to endure. The undisputed evidence was that plaintiff actually was in such a condition and, according to plaintiff himself, the jerk which he and Fish made on the tie when he wrenched hie back was "ordinarily enough to pull a tie [without a spike in it] out." Thus, plaintiff actually complied with the order in the manner in which Stoughton rightly could assume plaintiff would comply. Stoughton reasonably could not have been required to anticipate that plaintiff's compliance might result in injury. Compare Lowden v. Bowen, 199 Okl. 180,183 P.2d 980. Contrast Hamilton v. Standard Oil Co., 323 Mo. 531,19 S.W.2d 679, wherein the master had actual knowledge of the servant's weakened physical condition.
[28] Furthermore, the Waterhouse case is distinguishable in that plaintiff, unlike Waterhouse, made no protest against working when he was not in physical condition. Plaintiff's report to Stoughton that he and Fish were having difficulty was not, as plaintiff argues, a "protest" against his being required to over-exert himself. Plaintiff's own testimony was that he merely reported that he and Fish could not pull the tie. Contrast Blair v. Baltimore O. R. Co.,323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490. At plaintiff's request, the rails had been jacked up as far as possible even before he and Fish made other efforts and before they called upon Stoughton to "pry." Nor was plaintiff's statement (that he was pulling as hard as he could) prior to the issuance of the order — after the first effort of plaintiff,Page 448Fish and Stoughton — apparently motivated by any apprehension of injury to himself. In any event, plaintiff admitted that, on the next effort of the three (in which he sustained his injuries) he exerted no more effort than he ordinarily did in pulling a tie without a spike in it.
[29] Plaintiff cites Crane v. Liberty Foundry Co., 322 Mo. 592,17 S.W.2d 945; Williams v. Terminal R. Ass'n of St. Louis, Mo.App., 20 S.W.2d 584; Plummer v. Ford, Mo.App., 208 S.W. 489; Chicago, R. I. P. Ry. Co. v. Cline,91 Colo. 255,14 P.2d 495; Port Angeles Western R. Co. v. Tomas, 9 Cir.,36 F.2d 210; 18 RCL, Master and Servant, § 149, p. 655. All involvehazardsto the workman which the reasonably prudent superior should or should not have anticipated. What hazards to instant plaintiff should Stoughton be required to have foreseen when he gave the order? None.
[30] Did defendant fail to furnish sufficient help? Plaintiff says that the master's duty is to furnish a sufficient number of men to do the work with safety to the men. Observing that the requirement isreasonablesafety, that issue is submissible only where there is evidence upon which the jury can base reasonable inferences. This rule is applied in the cases plaintiff cites: Hulsey v. Tower Grove Quarry Construction Co., 326 Mo. 194,30 S.W.2d 1018; McMullen v. Missouri K. T. Ry. Co., 60 Mo. App. 231; Blair v. Baltimore O. R. Co., supra. The issue was not submissible in the instant case because there is no evidence whatever from which it could be inferred that the number furnished was not sufficient to enable the workman or workmen to do the work withreasonablesafety.
[31] The parties appear to be in agreement that defendant was required to use reasonably safe methods. Plaintiff says that "there was no evidence at all that the method forced on Stone by the defendant in removing a tie with a spike in it was a reasonably safe method." The undisputed evidence was that, at the time he gave the order, Stoughton and his crew were following the regular and usual method of getting out a tie hard to remove — and one that probably had a spike in it. True: "The test of defendant's negligence was not custom or usage, but what reasonable prudence would require under the circumstances." Terminal R. Ass'n of St. Louis v. Schorb, 8 Cir.,151 F.2d 361, 364. But here there was no evidence that the customary and usual methods used were "unsafe," — no evidence even intimating that defendant knew or should have known that the "prevalent standards of conduct were inadequate to protect petitioner [instant plaintiff] and similarly situated employees." Urie v. Thompson, supra [337 U.S. 163, 69 S.Ct. 1028]. Not only was there no evidence that the methods were not reasonably safe, but the only reasonable inference possible, from the evidence given, was that the methodswerereasonably safe. Contrast these cases cited by plaintiff: Spencer v. Quincy, O. K. C. R. Co., 317 Mo. 492,297 S.W. 353; Perryman v. Missouri Pacific R. Co., 326 Mo. 176,31 S.W.2d 4; Grandstaff v. Wabash Railway Co., Mo. App., 71 S.W.2d 174. Boston M. R. R. v. Meech, 1 Cir.,156 F.2d 109, cited by plaintiff, is inapplicable, in that the "further possible precautions" that could have been taken related to a safe place of work and the operation of a locomotive, not safe methods of work with nonhazardous tools or instrumentalities.
[32] Plaintiff argues that Stoughton failed to furnish sufficient help because "it took four men to remove the tie." But the undisputed evidence was that itusuallytook threeorfour men to pull ties with spikes in them. And there was no evidence upon which could be based any inference that Stoughton should have abandoned the "three-man" method after a single effort.
[33] Plaintiff's final charge of negligence was failure to jack the rails higher. The evidence was that they were jacked up as high as they should be jacked. Plaintiff said they could not be jacked "too high, you can jack it up plenty to slide a tie [without a spike in it] out." Fish said that the rails were as high as they were generally raised and as high as needed to pull ordinary ties.Page 449There was no dispute but that if the rails, with ties still spiked, are jacked too high, the ballast falls into the tie beds and causes a "hump in the track."
[34] However, Fish and Hopkins said, the spikes in the ties for a half-rail length in both directionscouldbe pulled and the rails themselves raised, off the ties, to any desired height; that would take a little more time but a tie with a spike in itcouldthen be pulled bytwomen. Stoughton and Slagle said that while thiscouldbe done, it would take a "lot longer." Stoughton said that it was "impractical" because it would require stopping trains (apparently running between the Lake Erie and Nickel Plate main lines, respectively) "coming and going there all the time and using the Y so much." Stoughton did say that lifting the rails, as suggested by Fish and Hopkins, would be a "lot safer" (to the section crew). Slagle thought the suggestion was "foolish" since the removal of a tie with a spike in it was not particularly difficult under the methods used.
[35] Defendant was required to use methods reasonably, not absolutely, safe. Williams v. Terminal R. Ass'n of St. Louis, supra. While there was evidence that jacking the rails up entirely off the ties was a "lot safer," there was no evidence that defendant's methods were not reasonably safe. The method plaintiff, Fish and Hopkins suggested would take longer and require holding up trains of two railroads' main lines operating over the Y. "Obviously, such a method would materially slow up work. Is such work ordinarily done by reasonably careful workmen in that manner? Would this not set up higher standards than reasonable care and require a duty of absolute safety of method of work rather than reasonable safety?" Williams v. Terminal R. Ass'n of St. Louis, supra [339 Mo. 594, 98 S.W.2d 656].
[36] Now, causal connection. As to Stoughton's order: Plaintiff submitted his case under the hypothesis that Stoughton negligently ordered plaintiff to "exert more strength and jerk the tie hard enough to remove it"; and that the "order amounted to a direction to plaintiff to exert more strength than was ordinarily necessary to remove a railroad tie under ordinary and customary circumstances." Even if the order be so construed, there was no evidence that, in the pull plaintiff made after the order and in which he wrenched his back, he exerted more strength than ordinarily necessary. Plaintiff himself — the only one who knew or could know how hard he pulled — only went so far as to say that the "jerk" he gave the tie was "ordinarily enough to pull a tie [without a spike in it] out." Plaintiff admits he did not comply with the order by pulling any harder than he usually did. By his own admission fixing the amount of energy he actually used, the order did not cause plaintiff to over-exert himself and, hence, did not cause his injuries.
[37] Compare Simon v. Terminal R. Ass'n of St. Louis, Mo.App.,237 S.W.2d 244, wherein Simon's back "popped" when he started to help pick up a rail upon the order of someone other than the "straw boss." Plaintiff would distinguish that case "because there was no causal connection between the injury and the alleged negligence." But even if, as plaintiff argues, defendant ordered him "to exert more force than he was exerting," plaintiff did not, in fact, exert more force and, hence, the order was not the cause of his injury.
[38] Plaintiff's admission is also fatal to the charge of insufficient help. There was no evidence that plaintiff exerted more strength because of lack of sufficient help. When he wrenched his back, he was pulling just hard enough to pull an ordinary tie. With Stoughton prying and Fish also pulling on the tongs, plaintiff was exerting no more strength than he ordinarily exerted. There was no causal connection between his injury and the alleged failure to furnish sufficient help.
[39] By the same token, there was no causal connection between plaintiff's injury and the alleged failure to jack the rails higher. Even assuming that such failure was negligence, it in no way contributed to cause the injuries, — sustained by exerting ordinary, not additional, strength.
[40] We hold that plaintiff did not make a submissible case under the Act either as toPage 450negligence or as to causation. Accordingly, the judgment is reversed.
[41] VAN OSDOL, C., concurs.
[42] COIL, C., dissents.
[45] All concur.