Baker v. Kansas City Terminal Ry. Co.

• Decision Date: 08 September 1952
• Docket Number: No. 1,No. 42794,42794,1
• Citation: 250 S.W.2d 999
• Parties: BAKER v. KANSAS CITY TERMINAL RY. CO
• Court: Missouri Supreme Court

Page 999

250 S.W.2d 999

BAKER v. KANSAS CITY TERMINAL RY. CO.

No. 42794.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1952.

Lathrop, Woodson, Righter, Blackwell & Parker, Winston H. Woodson, James F. Walsh, Robert D. Youle, Kansas City, for appellant.

Paul C. Sprinkle, William F. Knowles, Roy F. Carter, Sprinkle, Knowles & Carter and F. M. Kennard, Kansas City, for respondent.

COIL, Commissioner.

Judgment for $10,000 was entered on a jury's verdict in plaintiff-respondent's action for damages for personal injuries alleged to be the result of defendant-appellant's negligence. Defendant contends that: the court erred in overruling its motion for directer verdict and in giving instruction A; the verdict is grossly excessive.

Plaintiff was an employee of Railway Express Agency, Inc. (referred to hereinafter as Express Co.). Express Co., a tenant of a portion of Union Station in Kansas City, owned and operated by defendant, was granted the right to use, in common with others, defendant's platforms between the various railroad tracks for the purpose of loading express into train cars. It was necessary to pull express trucks or wagons from various places to the doors of cars. Platform 5 ran east and west adjacent to tracks 19 on the south and 20 on the north. Prior to 1947, this platform was constructed of 2"' X 10"' wood planks about 21 1/2' in length, laid crosswise, i. e., from north to south. During 1947 defendant employed an independent contractor to convert the platform to concrete. A portion was converted in 1947. On April 3, 1948, the same contractor began to convert the remainder, beginning at the east. On April 23, in accordance with usual procedure, the 2"' X 10"' planks were removed from a 32' long (east to west) section of platform 5. (Consequently, to the east of the removed section was a new concrete platform and to the west was the old wood platform). Some of the removed planks were placed lengthwise (east and west) over one half of the removed section. It was necessary to place two planks end to end to cover the 32' length. The east ends of these planks were flush with the concrete platform and the west ends overlapped about 11' onto the old wood platform. Thus, there was a 'temporary bridge' 43' in length covering one half the total width of the removed section (about 10'), flush with the concrete on the east and overlapping about 11' on the wood platform on the west, and the west end 2"' higher than the surface of the old wood platform. A barricade about 3' high was placed along the south edge of this temporary bridge and extended around the east and west ends of the removed section. At the west end of the temporary bridge was placed a 2"' X 6"' board extending across the ends of the overlapping planks. This board (sometimes called cross board) was supposed to be beveled so that the 2"' rise from the old wood platform to the temporary bridge would be gradual.

Plaintiff was a working foreman or lead man and on April 25, 1948, had a crew of three. He had been instructed by his foreman to load express into a car standing east of the temporary bridge on track 19. About 11:30 p. m., plaintiff walked from east to west over the temporary bridge to get one of three express wagons which were then standing on the south side of the old wood platform at a place west of the west barricade. There were other wagons or trucks standing in the area. The express wagons or hand trucks (hereinafter referred to as wagons), made largely of wood, were about 8' long, 30"' to 40"' wide, with a flat bed about 36"' above the floor. Each had four 18"' wheels made either of steel or hard rubber, and a tongue about 30"' or 40"' in length with an iron loop in the end used as a handle for pulling. The wagon in question was equipped with a fifth wheel which permitted the front wheels and the tongue to be turned to the right or left in a complete circle.

Plaintiff obtained the wagon, weighing as loaded from 1,000 to 1,800 lbs., and by an irregular course proceeded to pull it (facing the wagon and walking backwards) against the cross board of the temporary bridge. The right front wheel struck before the left, and the tongue jerked and threw plaintiff to the south against the barricade.

Plaintiff examined the cross board and determined that it was beveled about one third on the upper side, that is, although beveled there was still a blunt side of the board 1 1/3"' high, against which the wheels of the truck would necessarily strike.

The bridge was completed on Friday before the accident on Sunday. Plaintiff knew the temporary bridge was there but had never pulled an express wagon over it; had not observed the exact manner of its construction; had had no experience which would suggest to him that pulling the truck so that one front wheel which struck the cross board before the other would cause the tongue to jerk sufficiently to cause him to be thrown into the barricade; had pulled wagons before but not under the conditions which obtained. It was necessary to gain some momentum in order to negotiate the bridge when one man was pulling a loaded express wagon. The bridge was so constructed that if the wheels of a wagon hit the bridge at a 'very slight angle' the tongue would be thrown in the opposite direction.

Defendant's employee had planned the construction of the temporary bridge and had specifically instructed the independent contractor not to cut the 21 1/2' planks. This, in order to conserve them because 'they cost money'. By cutting the 21 1/2' planks to proper lengths, the west end of the temporary bridge would have been flush with the east end of the old wood platform, and there would have been no overlap or consequent difference in elevation between the old wood platform and the temporary bridge. The 2"' X 6"' cross board was supposed to be beveled (according to plan) its full width so that the bevel would extend for 1/4"' at its west side to the full thickness of the board at the east. Other evidence will be referred to later in the opinion.

The cause was submitted on the single question of whether defendant constructed the temporary bridge with an insufficiently beveled board as the approach to the west end thereof and whether, if so, such construction was a failure to use ordinary care to make the platform reasonably safe for plaintiff's use. Defendant contends that there was no evidence of negligence in its construction or maintenance of the temporary bridge.

Plaintiff's employer, Express Co., was a tenant of defendant with the right to use platform 5 in common with others. Plaintiff, employee, was in the same relation to defendant as his employer. Darlington v. Railway Exchange Bldg., 353 Mo. 569, 578, 183 S.W.2d 101, 105[1, 2]. Defendant had the duty to plaintiff to exercise ordinary care to maintain platform 5 in a reasonably safe condition for the use intended, or a duty not to create a condition which would make the platform unsafe or dangerous for its intended use. Schneider v. Dubinsky Realty Co., 344 Mo. 654 664, 127 S.W.2d 691, 696; 52 C.J.S., Landlord and Tenant, Sec. 417, page 27, 'Use contemplated'; Rest.Torts, Vol. 2, Sec. 360, p. 976.

The temporary bridge was constructed exactly as directed by defendant. Thus, there is no question in the case concerning the liability of defendant by reason of the performance of the work by an independent contractor. Defendant knew the exact manner in which the temporary bridge was constructed and knew that plaintiff and others had to use platform 5 to transport express from places west to places east of the bridge by pulling heavily loaded express wagons upon and over the temporary bridge. There was evidence from which a jury could reasonably find: that the cross board at the west ends of the planks of the temporary bridge was supposed to be so beveled that there would be only a 1/4"' rise from the surface of the old wood platform to the beginning of the beveled portion of the cross board; that there was in fact a 1-1/3"' rise from the surface of the old wood platform to the beginning of the beveled portion of the cross board; that such cross board was not beveled sufficiently to make the approach to the bridge gradual enough to prevent the tongue of an express wagon from jerking sufficiently to throw one pulling it to the side when one of the front wheels struck the cross board before the other; that it was standard, common practice in constructing temporary bridges, such as the one here in use, to make the ends thereof flush with adjacent surfaces wherever possible; that such 'flush' construction of the west end was possible and practicable here but was not employed for the sole reason that defendant directed the contractor not to cut the planks.

This evidence was sufficient to make a jury issue as to whether the failure of defendant to sufficiently bevel the cross board made the use of the platform unsafe for the purpose intended and constituted a failure on the part of defendant to exercise ordinary care to keep platform 5 in a reasonably safe condition for use by plaintiff. Schonlau v. Terminal R. Ass'n of St. Louis, 357 Mo. 1108, 1113, 212 S.W.2d 420, 422[1, 2].

Defendant offered evidence to the effect that construction of the instant temporary bridge was in accord with standard, common practice in like construction projects in Kansas City and contends that where construction conforms to usual and ordinary practice, it cannot constitute negligence, citing, Wommack v. Orr, 352 Mo. 113, 176 S.W.2d 477; Stein v. Buckingham Realty Co., Mo.App., 60 S.W.2d 712; and Pevesdorf v. Union Electric Light & Power Co., 333 Mo. 1155, 64 S.W.2d 939. Suffice to say as to the rule relied upon that in this case defendant's evidence does not necessarily establish that the construction of the temporary bridge did conform to standard practice but was subject to the opposite conclusion. This, for the reason that at least one of defendant's expert witnesses...