Aeby v. Missouri Pac. R. Co.

Decision Date05 April 1926
Docket NumberNo. 25385.,25385.
Citation285 S.W. 965
PartiesAEBY v. MISSOURI PAC. R. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; C. B. Davis, Judge.

Action by Mary I. Aeby against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green and M. U. Hayden, both of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

HIGBEE, C.

The plaintiff sued the defendant under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8865), for damages for personal injuries sustained by her while employed as station agent at Magness, Ark. The jury returned a verdict assessing the plaintiff's damages at $21,500. Plaintiff, at the suggestion of the court, remitted $6,500, and judgment was rendered for plaintiff for $15,000, and the defendant appealed. The evidence for the plaintiff is that she entered the employ of the defendant as a ticket agent at its station at Morefield, Ark., a station between Batesville and Magness, on March 20, 1919, and worked there in that capacity until July 2, 1919, when she began work for the defendant as station agent at Magness, a village having a population of about 400, during the absence of the regular agent, Mr. Eden, and served there in that capacity until a few days after she sustained her injuries on January 13, 1921, when Mr. Eden reported for duty. There were four passenger trains passing Magness daily, which were engaged in interstate commerce. The station, a one story building, 16 × 48 feet, faces to the north. The platform, 10 feet wide and 300 feet long, between the station and the railroad track, was constructed of loose chat or small broken stones, laid on the surface of the ground. It is a foot higher at its north side than at the station. There were no gutters on the eaves of the roof of the station building, so that rain ran off the roof to the platform, which drained to the west, wearing a channel in the chat along the north side of the building and in front of the steps at the door into the waiting room, which door is at the west end of the station. When plaintiff was employed as station agent at Magness there was a depression about four feet square and three or four inches deep at the steps in front of this door, caused by the tramping of persons going in and out of the station and by the water running in front of the door. This depression was probably a little larger and deeper on January 13th than in the previous July. There were a few other depressions or holes in the platform. Rain would collect and form puddles of water in these holes or depressions, which would gradually run away or be absorbed. During plaintiff's employment at Magness, there had been no hard freezing weather, and she had not observed ice in these depressions. It was plaintiffs duty as station agent to do book work, sell tickets to passengers, and handle the express, baggage, and freight work. The petition and answer aver that the plaintiff and the defendant were each engaged in interstate commerce, and it is averred in the answer that the particular train mentioned in plaintiff's petition, to which she was "required to deliver and from which she was required to receive express, mail, and messages," was a train which was operated by defendant and carried passengers and merchandise between the city of Newport, Ark., and the city of Joplin, Mo. The suggestion of, or the making of, repairs in or about the station or the platform did not fall within the line of plaintiff's duties; such matters pertained to the duties of the section foreman or his superiors.

When plaintiff and her friend, Miss Fugett, retired on the evening of January 12, 1921 (plaintiff then lived in the station), the station platform was dry. There was a northbound passenger train scheduled to pass the station at 6:18 a. m. When plaintiff and Miss Fugett, at about 6:10 a. m., started out' of the station to place the truck to receive the mail, baggage, and express, it was dark and there were no lights on the platform; it had rained in the night and two or three inches of snow had fallen. The rain had filled these depressions and frozen. The ice in the hole in front of the door referred to was rough and uneven, but plaintiff did not" know, nor did it occur to her, that there was or might be ice in these holes under the snow. She stepped off the west end of the steps at the door, got the truck, which was covered with ice, at the west end of the platform, placed it conveniently for the reception of mail, baggage, and express from the train, and then started to return to the station. She tripped, slipped, and fell heavily on the rough and uneven ice under the snow at the door steps and sustained serious internal injuries. There was evidence that puddles of water in this platform had frozen before plaintiff was employed as station agent at Magness. Particulars as to the nature and extent of plaintiff's injuries will be given in the opinion. At the close of the case the court overruled a demurrer to the evidence.

1. It is insisted that the petition does not state facts sufficient to constitute a cause of action, because it fails to allege that the defendant either knew or by the exercise of ordinary care could have known of the alleged negligent conditions, or that they had existed for a sufficient length of time to enable defendant, by the exercise of ordinary care, to have discovered and remedied them.

The petition alleges that at the time of plaintiff's injury, and for a long time prior thereto, the surface of the platform was composed of chat and fine gravel so loosely put together that depressions, holes, or drains were formed in it; that, the platform and station were so negligently constructed that the platform sloped towards the door of the station and the station had no gutters on the eaves of its roof; that a depression formed in front of the door to the station; that the chat or gravel was carried away from in front of said door by persons passing in and out of the station, and the water falling on the station and on the platform flowed towards this depression forming a ditch; and that in cold weather, when rain, snow and sleet fell, ice formed in this ditch and depression, and formed a slick, ice-covered, and irregular surface, rendering it unsafe and dangerous for a person to step into or upon; that when plaintiff slipped and fell the depot platform was dark and unlighted; and that she had no knowledge that said platform was in said dangerous and unsafe condition, nor could she have knowledge of such fact by the exercise of ordinary care, etc.

"Where it appears from the complaint that the defect is a defect of construction, the authorities do not require an allegation of the employer's knowledge of the defect." 6 Thompson's Comm. on the Law of Negligence (2d Ed.) 533.

"Where the defect in an appliance is shown to be structural and of such a character as renders it unsafe, it may be inferred that the employer was aware of the defect, and an employee who has been injured by such an appliance need not show that the master knew it was defective." 26 Cyc. 1144, and cases cited in note 86.

In Dietzman v. St. Louis Screw Co., 300 Mo. 196, 210, 254 S. W. 59, 63, Judge Graves said:

"Nor is there question as to the fact that defendant knew of the situation in ample time to have remedied it before the accident. In fact it constructed the place, and when it made it a working place, was bound to know its condition."

Elliott v. Payne, 293 Mo. 581, 239 S. W. 851, 23 A. L. R. 706, was an action based on the federal Employers' Liability Act for the death of a locomotive fireman charged to have been caused by a defective platform. Judge Graves said:

"Plaintiff had evidence tending to show that at places the bricks were lower than the curbing, and this condition permitted the accumulation of water and ice. Whether the defects were in the original construction, or appeared later by reason of use and the sinking of the bricks into the base upon which they were placed, can make no material difference. The charge in the petition is that defendant maintained the platform in a defective condition."

In Sankey v. Chicago, etc., Ry. Co., 118 Iowa, 40, 91 N. W. loc. cit. 821, the court said:

"It is first urged that defendant cannot be held negligent because of the presence or accumulation of ice and snow upon its tracks and yards. Within certain limitations, this is the correct doctrine. Climatic conditions—heat, cold, rain, snow, and ice—are beyond the control of the employer, and the mere fact of their existence or occurrence does not tend to negative the exercise of reasonable care. But it does not follow that a case cannot arise where the presence or existence of some of these elements is so combined with want of reasonable care by a railroad company in the maintenance of its tracks and yards as to create a danger which is not naturally or necessarily incident to a brakeman's labor. The work of coupling and uncoupling cars, making up trains, taking and discharging freight, opening and closing switches, is done almost exclusively within the yard limits of the stations along the line of road, and within reasonable limits, the obligation of the master to furnish his servant a safe place in which to work applies to these yards as imperatively as to the repair shops or to the general offices of the company."

See, also, Gibson v. Railroad, 115 Minn. 147, 131 N. W. 1057, Keitel v. St. Louis Cable Co., 28 Mo. App. 657, and Combs v. City of Kirksville, 134 Mo. App. 645, 114 S. W. 1153.

Reasonable and ordinary care must be determined in the light of the dangers to be reasonably anticipated. The defendant must be presumed to know that many persons would pass over this platform and that holes or depressions would form in the loose...

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