Aeby v. Missouri Pacific Railroad Company

• Decision Date: 05 April 1926
• Parties: MARY I. AEBY v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

285 S.W. 965

313 Mo. 492

MARY I. AEBY v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant

Supreme Court of Missouri

April 5, 1926

Motion for Rehearing Overruled May 25, 1926.

Taken to United States Supreme Court June 25, 1926.

Appeal from St. Louis City Circuit Court; Hon. Charles B Davis, Judge.

Affirmed.

James F. Green and M. U. Hayden for appellant.

(1) The judgment in this case should be reversed, without remanding the cause for another trial, for the following reasons: (a) The petition does not state facts sufficient to constitute a cause of action against appellant. Nowhere in said petition is there any averment that appellant either knew, or, by the exercise of ordinary care could have known, of any of the alleged negligent conditions or that they, or any of them had existed for a sufficient length of time to enable appellant, by the exercise of ordinary care, after knowing of said conditions, either actually or constructively, to have removed or repaired them and thus have prevented respondent's injury. Davidson v. Railway Co., 229 S.W. 786; Zitzmann v. Glueck Box Co., 276 S.W 23. (b) The allegations of respondent's petition do not bring the case within the provisions of the Federal Employers' Liability Act, as there is no averment that she was injured through the negligence of any officer, agent or employee of appellant, or that her injury was due to any defect or insufficiency in any of the appliances or equipment specified in said act. Act of Congress, 35 Stat. ch. 49, 65 U.S. Comp. Stat. 1913, secs. 8657-65; Elliott v. Payne, 293 Mo. 581; Kern v. Welz, 136 N.Y.S. 412, 151 A.D. 432; Ripp v. Fuchs, 113 N.Y.S. 361, 129 A.D. 321; Davis v. Plant, 138 N.Y.S. 145; Cahill v. Railroad, 190 Mass. 421. (c) The uncontradicted evidence of respondent herself wholly fails to establish facts for which a recovery can be sustained under the provisions of said Act of Congress. On the contrary, said evidence establishes, without controversy, that her injury was not occasioned by any of the causes enumerated in said act. Authorities last above. (d) The proof wholly fails to establish that the condition which caused respondent to slip and fall existed as the result of any negligence on the part of appellant. Respondent herself testified that she slipped on the ice and fell. This was at about six o'clock in the morning. As late as nine o'clock in the evening before, the platform was dry and there was no snow or ice on it. The ice froze during the night. Respondent was the only employee of appellant at this station during the period which elapsed between the formation of the ice and the accident. The evidence fails to establish that during said period appellant either knew, or by the exercise of ordinary care could have known, of the existence of the ice, or could, by the exercise of ordinary care, have removed it, thereby having prevented respondent's injury. Am. Brew. Assn. v. Talbot, 141 Mo. 684; Zasemowich v. Am. Mfg. Co., 213 S.W. 803; Lowe v. Railroad, 265 Mo. 587; Warner v. Ry. Co., 178 Mo. 125; Vonkey v. St. Louis, 219 Mo. 37; Albritton v. Kansas City, 192 Mo. 574; Abbott v. Springfield, 210 S.W. 443; Armstrong v. Monett, 228 S.W. 771; Benton v. St. Louis, 248 Mo. 109; Ward v. Dry Goods Co., 248 Mo. 348; Strode v. Box Co., 250 Mo. 695; Looney v. Railroad, 200 U.S. 480; Patton v. Railway Co., 179 U.S. 658. (e) It further appears from respondent's testimony that such condition was a changing and changeable one, and varied with the amount of rainfall, and it fails to establish that such condition was the proximate cause of respondent's injury. Warner v. Ry. Co., 178 Mo. 125; Trigg v. Lumber Co., 187 Mo. 227; Strother v. Railroad Co., 188 S.W. 1102; Cadwell v. Stove Co., 238 S.W. 415; Patton v. Railroad, 179 U.S. 658. (f) Respondent assumed the risk of injury resulting from the conditions prevailing at the time and place of this accident, whether those conditions were ordinarily incident to the duties which she was employed to perform or whether they existed as the result of appellant's negligence. 3 Labatt's Master & Servant (2 Ed.) secs. 1182, 1186a; Pryor v. Williams, 254 U.S. 43; McIntyre v. Ry. Co., 286 Mo. 234; Lopez v. Hines, 254 S.W. 37; Railway Co. v. Horton, 233 U.S. 492; Jacobs v. Ry. Co., 241 U.S. 229. (g) Respondent's injury was due solely to her own negligence, both before and at the time of the accident. Forbes v. Dunnavant, 198 Mo. 193; Mathes v. Stock Yards Co., 185 Mo. 434; Trainer v. Mining Co., 243 Mo. 359; Railway Co. v. Wiles, 244 U.S. 444; Davis v. Kennedy, 266 U.S. 147. (2) The verdict is excessive. It was so excessive as originally returned that justice to appellant could be rendered only by setting it aside and granting appellant a new trial. The injustice done appellant was not removed by the order of the trial court ordering a remittitur, and a proper consideration of the rights of appellant warrants an order by this court granting a new trial. Greenwell v. Ry. Co., 224 S.W. 404; Markey v. Railroad, 185 Mo. 348; Hurst v. Railroad, 219 S.W. 566; Varley v. Taxicab Co., 240 S.W. 228; Fitzsimmons v. Railroad, 242 S.W. 915; Adams v. Railroad, 229 S.W. 790; Burtch v. Ry. Co., 236 S.W. 338; Partello v. Ry. Co., 217 Mo. 645; Lessenden v. Ry. Co., 238 Mo. 247; Gaty v. Rys. Co., 251 S.W. 61; Richardson v. Ry. Co., 288 Mo. 258; Coon v. Ry. Co., 228 S.W. 78; Miller v. Schaff, 228 S.W. 488; Parker v. Ry. Co., 235 S.W. 1067.

Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) A station platform is the working place of a station agent, who is required to operate a truck across the platform to deliver and receive express, mail and messages from trains, and falls within the term "works" in the Federal Employers' Liability Act. Elliott v. Payne, 293 Mo. 581; Dietzman v. Screw Co., 300 Mo. 196. (2) Where the defect in an appliance furnished by a master to a servant is a defect of construction, it is unnecessary to allege that the master had knowledge of the defect. 26 Cyc. 1144; 6 Thompson on Negligence (2 Ed.) p. 553; Dietzman v. Screw Co., 300 Mo. 196; Keitel v. Cable Ry. Co., 28 Mo.App. 657. (3) Due care on the part of a master requires him to take into consideration the operation of natural forces upon instrumentalities furnished to the servant. 3 Labatt on Master and Servant (2 Ed.) p. 2750; Benton v. St. Louis, 248 Mo. 98; Johnson v. Railroad, 164 Mo.App. 600; Schiller v. Breweries Co., 156 Mo.App. 569; Bowen v. Railway Co., 95 Mo. 268; Carney v. Ry. Co., 39 N.D. 425; Union Pacific Ry. Co. v. O'Brien, 49 F. 538, 161 U.S. 451. (4) A master is liable to a servant who is injured by tripping on rough, uneven ice which has formed in a depression which the master has caused or permitted to form in a platform which constitutes the working place of the servant; and it is immaterial that the master had no actual knowledge of or opportunity to remove the particular ice in question. Beane v. St. Joseph, 256 S.W. 1093; Merritt v. Tel. Co., 215 Mo. 299; Smith v. St. Joseph, 42 Mo.App. 392; Heeter v. Huntsville, 121 Mo.App. 495; Elliott v. Payne, 293 Mo. 581; Melody v. Des Moines Ry. Co., 161 Iowa 695; Sankey v. Chicago Ry. Co., 118 Iowa 39; Gibson v. Iowa Cent. Ry. Co., 115 Minn. 147; Harding v. Transfer Co., 80 Minn. 504; Burdick v. Chicago Ry. Co., 123 Minn. 105; Renn v. Seaboard Air Line, 170 N.C. 128; Rogers v. Davis, 228 P. 330; Rifley v. Minneapolis Ry. Co., 72 Minn. 469; Gregg v. Chicago Ry. Co., 91 Mich. 624; Lawson v. Truesdale, 60 Minn. 410, 58 L. R. A. 323; Hill v. Fond du Lac, 56 Wis. 242; Dracass v. Chicago, 193 Ill.App. 75; Waters v. Kansas City, 94 Mo.App. 413; Conklin v. Elmira, 42 N.Y.S. 518, 11 A.D. 402. (5) Respondent did not assume the risk resulting from the conditions prevailing at the time and place of the accident. Cincinnati Railroad Co. v. Thompson, 236 F. 1; Burdick v. Ry. Co., 123 Minn. 105; Rogers v. Davis, 228 P. 332; Bowen v. Mfg. Co., 105 Me. 31; Fitzgerald v. Paper Co., 155 Mass. 155. (6) The verdict is not excessive. Barr v. City of Kansas, 121 Mo. 32; Evans v. General Explosives Co., 239 S.W. 487; Mayme v. Ry. Co., 229 S.W. 386; Caldwell v. Payne, 246 S.W. 312; Payne v. Davis, 252 S.W. 57; Mount v. Western Coal Co., 242 S.W. 943; Myers v. Railroad, 246 S.W. 257; Dahlstrom v. Railroad Co., 167 P. 1080, 98 Wash. 390.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

The plaintiff sued the defendant under the Federal Employers' Liability Act for damages for personal injuries sustained by her while employed as station agent at Magness, Arkansas. 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, Arkansas, 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 by 48 feet, faces to the north. The platform, ten 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...