Hawkins v. Saint Louis & San Francisco Railroad Company

• Decision Date: 12 March 1915
• Parties: A. J. HAWKINS, Respondent, v. SAINT LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

174 S.W. 129

189 Mo.App. 201

A. J. HAWKINS, Respondent, v. SAINT LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

March 12, 1915

Appeal from Lawrence County Circuit Court.--Hon. Carr McNatt, Judge.

AFFIRMED.

STATEMENT.--Hawkins sued the defendant railroad company to recover $ 30,000 as damages for personal injuries sustained by him while in defendant's employ at its roundhouse in Springfield, Mo. The action was brought under the Federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, Ch. 149; U.S. Comp. Stat. Supp. 1911, p. 1322; Fed Stats. Anno. Supp 1909, p. 584) as amended April 5, 1910 (36 Stat. at L. 291 Ch. 143; U.S. Comp. Stat. Supp. 1911, p. 1324.) In the petition it was sufficiently averred that defendant was a corporation operating a line of railway as a common carrier in interstate commerce, and that plaintiff at the time he was injured was employed by defendant in such commerce. It was admitted at the trial by the parties that the engine which plaintiff was helping take out of defendant's roundhouse was being taken out preparatory to its run in pulling a freight train carrying interstate commerce, so that these facts were not in issue.

The petition, among other things, states these facts: Plaintiff was assistant general foreman at the roundhouse where locomotives were housed and stalled, his hours being from seven p. m. to seven a. m. every night. On November 17, 1912 plaintiff and a hostler at about 6:40 a. m. went to stall No 14 to pilot engine No. 1328 out of the roundhouse to the coal chute and water tank. After the hostler had started the engine, plaintiff undertook to walk along by its side in the stall until he could get to a place where he could mount the engine at the step between the tender and engine proper (alleging it was his duty to get on the engine), and while so doing he stepped on a small screw-jack lying on the floor of the roundhouse which rolled under his foot and he was thrown violently forward to the floor and towards the side of the engine, and his arm struck on the rail in front of the driver and was severed between the elbow and the wrist. "Plaintiff states that on account of the darkness in said roundhouse caused by the failure of said company to keep same properly lighted and further darkened by the steam and smoke then and there being emitted from said engine and other engines then and there in said roundhouse, he was unable by the exercise of ordinary care, to see said jack, then and there lying upon the floor near the track upon which said engine was being operated. Plaintiff further states that said jack had been left in said position on the day previous by one of the machinists working under the general roundhouse foreman and had not been removed to a place where it would not be dangerous to plaintiff and other workers in said roundhouse doing their duties in the nighttime, and that its position where it was left by the machinist as aforesaid rendered the place where plaintiff and others were required to work in moving and working about said engine unsafe, and that said jack had remained in said position since the day previous, to the knowledge of the defendant, or by ordinary care it could have been known, and its position was not known to plaintiff, and on account of the darkness of said roundhouse it could not be discovered by ordinary care on the part of the plaintiff."

As stated in respondent's brief, the ground of negligence relied upon in the petition was the failure to exercise care in furnishing a reasonably safe place to work in two particulars: (1) Negligence in failing to properly light said roundhouse so that the light would shine between the stalls and engines, where plaintiff was injured. (2) Negligence in leaving the screw-jack on the floor of the roundhouse near the track where plaintiff was injured.

The answer was, first, a general denial. Secondly, it was averred "that whatever injuries were received by plaintiff at the time alleged in his petition, were brought about by and were due to plaintiff's own negligence contributing thereto, in that it was the duty of plaintiff as the night foreman in charge of the shops to represent the defendant in the capacity of vice-principal, and that if there was any negligence in allowing the screw-jack referred to in plaintiff's petition to remain upon the floor of the roundhouse, at the place where plaintiff alleges he stepped upon it, that by reason of the position occupied by plaintiff, said negligence, if any, was the negligence of plaintiff; and further, in that if the said roundhouse was not sufficiently lighted, it was the duty of the plaintiff to have provided himself with a lantern or torch, and that his failure to do so constituted negligence on his part." Thirdly, defendant avers "that if the injuries sustained by plaintiff at the time alleged in his petition were caused by any failure to properly light said roundhouse, so that the light would shine between the stall and the engine where plaintiff was injured, that the same was the result of the usual and ordinary risks of the business of defendant in which plaintiff was engaged in the manner in which it was carried on, and that the consequences thereof and the risks incident thereto were assumed by plaintiff as a part of his employment, for which reason plaintiff is not entitled to recover anything in this action."

The jury returned a verdict for $ 5000 and defendant has appealed.

Judgment affirmed.

W. F. Evans, Mann, Todd & Mann for appellant.

(1) The demurrer should have been sustained. Plaintiff was not entitled to go to the jury as to the first specification of negligence, i. e., the failure to properly light the roundhouse, because he assumed the risk of that negligence. This action is governed by the Act of Congress commonly called the Employer's Liability Act, and by the rule of decision prevailing in the Federal courts with respect to the construction and operation thereof. Under that rule of decision, the servant assumes the risks arising out of a defect in the place at which he works attributable to his employer's negligence, provided he knows (or is presumed from its obviousness to have known) of the defect, and also knows that it endangers his safety (or if an ordinarily prudent person under the circumstances would realize that it endangered his safety. Railroad v. Horton, decided by the United States S.Ct. April 27, 1914, reported U. S. Adv. Ops. 1913, p. 635; Railroad v. Hall, decided by the United States S.Ct. January 5, 1914, reported U. S. Adv. Ops. 1913, p. 229; Railroad v. Jacobs, 81 S.E. 99; Price v. Railroad, 77 Mo. 509-10; Donovan v. American Linen Co., 61 N.E. 808; Buehner v. Creamery Package Co., 100 N.W. 345; Rich v. Railroad, 166 Mo.App. 390; American Silver Mfg. Co. v. Railroad, 174 Mo.App. 192; McElvain v. Railroad, 176 Mo.App. 382; Sims v. Railroad, 177 Mo.App. 25; Hamilton v. Railroad, 177 Mo.App. 151 and 153; Mondon v. Railroad (U. S. Sup.), 56 L.Ed. 347. (2) There was no showing that the defendant knew that the jack was at the place plaintiff stumbled over it, nor was it shown that the jack had been at said place for such a length of time that defendant had constructive knowledge of its being there. To constitute negligence defendant must have actually known that the jack was where plaintiff stumbled over it, or must have had constructive knowledge. Railroad v. Horton, supra; Railroad v. Swann's Admx., 169 S.W. 888; Wilks v. Railroad, 159 Mo.App. 722; Wojtylak v. Coal Co., 188 Mo. 281; Rowden v. Daniel, 151 Mo.App. 15; Nickerson v. Railroad, 144 Mo.App. 408. (3) Defendant was not guilty of any negligence with respect to the jack being in the place where plaintiff stepped on it, for the reason that plaintiff was the foreman in charge of the premises at the time he was injured. In order to get constructive notice to defendant it had to pass through plaintiff as a conduit. McCrory v. Railroad, 118 S.W. 710; Linck v. Railroad, 54 S.W. 784; Minster v. Railway, 56 Mo.App. 280; Moore v. Jones, 39 S.W. 593; Railroad v. Snyder, 7 N.E. 607-608; Evans v. Railroad, 62 Mo. 509.

Fielding P. Sizer for respondent.

(1) Appellant failed to plead in its answer or prove in evidence that plaintiff knew of the presence of the jack, or that, knowing the absence of the light, he appreciated the danger and appellant cannot avail itself of that defense now. Myers v. Coal Co. (U. S.), 58 L.Ed. 906; Railroad v. Swearinger (196 U.S.), 49 L.Ed. 386. (2) Appellant nowhere pleads that plaintiff assumed any extra hazards due to defendant's negligence, and even handed justice would dictate that this court should try the case on the theory that defendant itself adopted in the lower court. Masters v. Transit Co., 204 Mo. 507-521; Chandler v. Gloyd, 217 Mo. 416; O'Keefe v. Railroad, 124 Mo.App. 619; Cary v. Car Co., 125 Mo.App. 193; Nicket v. Railroad, 135 Mo.App. 671. (3) Because appellant pleaded in its defense of contributory negligence that if the place was not sufficiently lighted, it was plaintiff's duty to provide himself with a torch or lantern and that his failure to do so was contributory negligence, and as contributory negligence does not defeat a recovery under the Employer's Liability Act, the demurrer was properly overruled. Employer's Liability Act, F. Stat., 1909, Sup.; Myers v. Pittsburg Coal Co. (U. S.), 58 L.Ed. 584; Peterson v. Railroad, 229 U.S. 146, 57 L.Ed. 1125; Thompson v. Railroad, 205 F. 203; Railroad v. Lindsey (233 U.S.), 58 L.Ed. 838. (4) There is sufficient evidence to show knowledge of the presence of the jack, or by ordinary care its presence could have been shown and therefore, was a jury question. Johns v. Bolt Co., 172 Mo.App. 216-217; Myers v. Coal Co. (U. S.), 58 L.Ed. 911.

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