Arnold v. Scandrett

• Decision Date: 14 September 1939
• Docket Number: 35743
• Parties: Charles Arnold v. Henry C. Scandrett, Walker J. Cummings, and George I. Haight, Trustee of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Appellants
• Court: Missouri Supreme Court

131 S.W.2d 542

345 Mo. 115

Charles Arnold v. Henry C. Scandrett, Walker J. Cummings, and George I. Haight, Trustee of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Appellants

No. 35743

Supreme Court of Missouri

September 14, 1939

Motion for Rehearing Overruled July 7, 1939, Motion to Transfer to Banc Overruled September 14, 1939.

Appeal from Clinton Circuit Court; Hon. Richard B Bridgeman, Judge; Opinion filed at May Term, 1939, June 14, 1939, motion for rehearing filed; motion overruled July 7, 1939; motion to transfer to Court en Banc filed; motion overruled at September Term, September 14, 1939.

Reversed.

Morrison Nugent, Berger, Byers & Johns, James E. Nugent and Chas. C. Byers for appellants.

The evidence failed to show the existence of causal negligence upon the part of defendants, or of any failure to exercise ordinary care to provide plaintiff a reasonably safe place in which to work, or reasonably safe methods. A. T. & S. F Ry. Co. v. Saxon, 284 U.S. 458, 76 L.Ed. 398; B. & O. Railroad Co. v. Berry, 286 U.S. 272, 76 L.Ed. 1101; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426, 72 L.Ed. 354; Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 7, 73 L.Ed. 581; New York C. Railroad Co. v. Ambrose, 280 U.S. 486, 74 L.Ed. 565; Chicago, M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1045; Wheelock v. Freiwald, 66 F.2d 698; A. T. & S. F. Railroad Co. v. Toops, 281 U.S. 351, 74 L.Ed. 899. The evidence failed to show the existence of knowledge, actual or constructive, of any dangerous condition, on the part of defendants. St. Louis, I. M. & S. Railroad Co. v. Ingram, 244 U.S. 647, 61 L.Ed. 1370, 124 Ark. 298, 187 S.W. 453; Winslow v. M., K. & T. Ry. Co., 192 S.W. 125; Foley v. New York, O. & W. Ry. Co., 97 N. J. L. 278, 116 A. 782. Plaintiff's testimony showed that plaintiff, an experienced section man, assumed the risk of an accident such as he claimed to have had. The accident claimed by him was one arising out of the usual and ordinary course of the work upon which he was engaged. Seabord Air Line Ry. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1070; Jacobs v. So. Ry. Co., 241 U.S. 229, 60 L.Ed. 977; C. & C. Ry. Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 159; Williams v. Term. Railroad Assn., 389 Mo. 594, 98 S.W.2d 651; Osborn v. C., R. I. & P. Ry. Co., 1 S.W.2d 181; C., B. & Q. Railroad Co. v. Shalstrom, 195 F. 725, 728, 45 L. R. A. (N.S.) 387; Maki v. Coal Co., 187 F. 393; Northwest Pac. Railroad Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 516; Boldt v. Penn. Railroad Co., 245 U.S. 441, 62 L.Ed. 389. His alleged accident was the result of an assumed risk which, whatever its source, was as obvious to plaintiff as to defendants' foreman. Boyet v. Davis, 269 S.W. 413.

Gerald Cross, Pross T. Cross, Ernest Hubbell and Platt Hubbell for respondent.

(1) The demurrer was properly overruled. (2) It is the duty of the master to give warning of all dangers of which the master has knowledge, or of which he might have obtained knowledge by the exercise of ordinary care. Alpha Port. Cem. Co. v. Curzi, 211 F. 587; Whitham Constr. Co. v. Remer, 93 F.2d 738; Neal v. Curtis & Co. Mfg. Co., 41 S.W.2d 550, 328 Mo. 389; State ex rel. Fogel Const. Co. v. Trimble, 310 Mo. 254, 274 S.W. 1028; Lewis, Admr., v. St. L. & I. M. Ry. Co., 59 Mo. 508; Pyatt v. So. Ry. Co., 154 S.E. 851; Kruk v. Minn., St. P. & S. S. M. Ry. Co., 241 N.W. 162; Weldon v. O., K. C. & E. Ry. Co., 93 Mo.App. 674; Foster v. Mo. Pac. Ry. Co., 115 Mo. 180, 21 S.W. 920.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action under the Federal Employers' Liability Act (45 U.S.C. A., secs. 51 et seq.) for personal injury. The cause was filed in Grundy County, but the venue was changed to Clinton County. The verdict and judgment ($ 15,000) went for plaintiff and defendants appealed.

Plaintiff was a member of a section crew and was injured (ruptured) while assisting in putting a motorcar on the track from a setoff. The negligence alleged was (1) failure to carry, on the motorcar, a turntable with which the motorcar could be removed from and placed back on the track with more safety than the method used (see infra); (2) in ordering and requiring (through the foreman) plaintiff and other members of the crew to place the motorcar on the track from a place not reasonably safe and by a method not reasonably safe; (3) negligence on the part of the foreman in failing to observe the position of the wheels on the lining bars (described infra) as the motorcar was being placed on the track, and in failing to warn plaintiff "with reference to the same;" and (4) failure to remove the motorcar from the track at the Reynolds farm crossing (used as a setoff), which crossing was about 1700 feet east of the setoff used.

The answer was a general denial, assumption of risk, contributory negligence, and a plea that plaintiff's injuries were solely caused by his own negligence. The reply was a general denial.

The cause went to the jury on all the alleged charges of negligence except on the turntable, and on the failure to use the Reynolds farm crossing.

Error is assigned (1) on refusing a demurrer to the evidence at the close of the case; (2) on the instructions; (3) on admission of evidence; (4) on conduct and argument of counsel; and (5) on an alleged excessive verdict.

It is in effect conceded that the case is properly under the Federal act. The railroad, at the place of injury, runs northeast and southwest, but is considered in the record as running east and west. The section, on which plaintiff worked, extended about eleven miles east from Chillicothe. The section crew consisted of James Walker, the foreman, and plaintiff, plaintiff's brother, Harry Arnold, and J. L. Phillips. The crew used a gasoline motorcar, the weight of which was about 1000 or 1100 pounds, in going over the section. Plaintiff was injured, about one and one-fourth miles east of Chillicothe, while assisting in putting the motorcar on the track from a setoff, about 400 feet west of bridge 688, and, as stated, 1700 feet west of the Reynolds crossing. On July 15, 1936, the crew came from the east, passed the Reynolds crossing; passed the bridge, and put the motorcar off on the setoff. Then the crew walked back; cut a fireguard under the bridge; did some track work and was then ready to put the motorcar back on the track and go in. The track was on an embankment, and the setoff used was on the south side of the track, and was about eight feet in width and extended back south about twelve or fourteen feet. The ballast extended out on the setoff five and one-half feet from the rail. The remainder of the setoff surface was cinders and dirt. The rails extended six inches above the ties, and the ballast came up only to the top of the ties both inside and outside the rails. Prior to July or August, 1935, this setoff and others had been provided with boards, between the rails, extending up to the top thereof, and board runways, out on the setoff, extending up as high as the rails. In July or August, 1935, an extra gang removed the old ballast and put down new gravel ballast. In doing the new ballast work, the boards, between the rails and the runways, at setoffs, were removed.

To put the motorcar back on the track from the setoff, the foreman directed that two lining bars (crowbars) be used as runners. These bars were five and one-half feet in length. The handle end was round and about one and one-fourth inches in diameter; the other end was wedge shaped. The west bar was placed by the foreman and the east one by Phillips. The handle ends, even with each other, were placed on the ball of the rail, and the bars extended back south and the flat side rested on the setoff surface. With this setup the crew commenced to place the motorcar on the track. The front of the motorcar faced north. Plaintiff was at the southeast corner; Phillips at the southwest corner; the foreman at the northwest corner; and plaintiff's brother, Harry Arnold, at the northeast corner. Plaintiff and Phillips faced north and the foreman and plaintiff's brother faced south. Those in the rear lifted and pushed and those in front pulled.

The distance between the front and rear wheels of the motorcar was such that the rear wheels would reach the bars before the front wheels went over the rail, and plaintiff said that he and Phillips were directed by the foreman to lift the rear of the motorcar so that the rear wheels would not come in contact with the bars, and that such was done. This according to plaintiff, was to protect the motorcar pulley wheel under the rear, which wheel was connected by belt with the engine at the front. Plaintiff testified that as the motorcar went up the bars, the east bar, in some way, moved forward about six inches and that the west front wheel of the motorcar dropped down to the ballast between the rails, before the east front wheel did, and that when the west front wheel so dropped down the southeast corner of the motorcar suddenly upkicked and struck him in the lower right abdomen, resulting in a direct inguinal hernia. No one saw the east bar move forward. Plaintiff noticed its changed position after the motorcar was placed on the track and when he picked up this bar to put it on the motorcar. Plaintiff said that the ends of the bars resting on the surface of the setoff sank down into the ground, and that his feet sank down three or four inches while lifting and pushing as the motorcar went up the bars. The foreman and Phillips testified that the rear of the motorcar was not lifted as it went up the bars; and to the effect that the left front wheel did not go over and down first; that there was no sudden drop of the west front wheel; that the front...