Banta v. Union Pac. R. Co.

• Decision Date: 09 July 1951
• Docket Number: No. 42208,No. 1,42208,1
• Citation: 362 Mo. 421,242 S.W.2d 34
• Parties: BANTA v. UNION PAC. R. CO
• Court: Missouri Supreme Court

Page 34

242 S.W.2d 34

362 Mo. 421

BANTA v. UNION PAC. R. CO.

No. 42208.

Supreme Court of Missouri, Division No. 1.

July 9, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 10, 1951.

Douglas Stripp, W. Coleman Branton, and Ralph S. Irwin, Jr., all of Kansas City, Watson, Ess, Whittaker, Marshall & Enggas, Kansas City, of counsel, for appellant.

Frank Burbridge, Omaha, Neb., Clay C. Rogers, Kansas City, Rogers, Field & Gentry, Kansas City, of counsel, for respondent.

CONKLING, Presiding Judge.

Paul Banta, plaintiff-respondent (herein called plaintiff), had a verdict and judgment for $40,000 (which was reduced by remittitur to $25,000) for alleged personal injuries claimed to have been sustained as the result of a fall from an icy ladder on the rear of a locomotive tender at Rock Springs, Wyoming, about 5:35 A.M., on December 18, 1947. He was then working as a locomotive fireman upon an interstate train for his employer Union Pacific Railroad Company, the defendant-appellant (herein called defendant). Plaintiff's petition based his action on a violation of the Boiler Inspection Act, 45 U.S.C.A. Sec. 23 herein called the 'Act.'

The petition alleges that in violation of the Act defendant 'did permit a steam line, being a part and appurtenant to the aforesaid locomotive, boiler and tender, to become defective and allow and permit steam to escape, obscure the vision of this plaintiff and to freeze on said ladder, causing it to become icy and slick; that said locomotive, its boiler, tender and all parts and appurtenances thereof, including said ladder, were thus and thereby unsafe to operate in the service it was then and there being put to by the defendant * * * and thereby involve unnecessary peril to plaintiff * * * (and) that as a direct and proximate cause of the aforesaid violations * * * he was caused to become * * * injured', etc.

Plaintiff's run was from Rawlings, Wyoming west to Green River, Wyoming, a distance of 134 miles. He assumed his duties at Rawlings about 2 A.M. on December 18, 1947, on a steam locomotive (Engine No. 7026) which pulled an express and mail train of seven cars and one coach to Green River. The temperature was below freezing. On its run west from Rawlings the train did not stop until it reached Rock Springs, sixteen miles east of Green River. At the engineer's direction it stopped at Rock Springs for coal and water. At Rock Springs the temperature was then 21~. From Rawling to Rock Springs, through the mountains, the track was curving, and the last sixty miles were downgrade. The highest altitude reached on the run was 7014 feet. There was no snow or other precipitation during the trip. The train arrived at Green River, the end of plaintiff's run, about 6:20 A.M. After the train stopped at Rock Springs to take coal and water, plaintiff (as was his duty) alighted from the locomotive on the right (north) side, walked to the rear of the tender and went up the ladder at the right rear corner of the tender to the top thereof. He there attended to filling the tank with water from a water spout at the side of the track. Another employee attended to the automatic loading of the coal. Plaintiff testified that as he was descending he slipped on the icy ladder and fell about four feet to the ground. Plaintiff was the only witness who testified to any facts respecting the condition of the ladder and his alleged fall. The locomotive and tender were standing motionless at the time plaintiff fell. Since that day plaintiff has done no railroad work at all.

Plaintiff testified that when the train was a half mile west of Rawlings, he looked back toward the rear of the train to check his side of the train. He then discovered that steam, coming from a leak in a steam line under the tender near the rear end thereof, was coming out between the tender and the front end of the first coach. That escaping steam prevented him seeing back along the left side of the train. Plaintiff did not report the steam leak to his engineer. The steam was still escaping when the train stopped at Rock Springs and five-sixths of the water in the tanks had then been used up. The steam continued to escape until that particular steam line was turned off when the train was eight miles west of Rock Springs.

The photographic exhibits and the testimony show that there was a steel stirrup below the sill of the tender involved on the right side thereof at the rear; that there was (next above the stirrup) an aperture in the sill itself into which trainmen could place a foot in ascent to the sill or in descent therefrom. The ladder itself was based on the right rear corner of the sill of the tender, was behind the tank and extended upward from the sill. Ascending or descending the ladder a trainman faced forward toward the front of the engine.

Plaintiff also testified, 'From the steam leak of this train line underneath here that steam was going back. That steam line was on the left-hand side of that tender and to comes across toward the drawbar, and that is where the leak was, right there in that apparatus somewhere. That steam was boiling up between the first car and this tender * * * it was blowing back (toward) the northwest (right front) corner of the first coach * * * (and) going in all directions hitting these connections.' On cross-examination plaintiff testified that there was ice and frost on the ladder, both on the cross-pieces and the side bars and that it was slippery; and that 'the ice on the ladder, or frost * * * came from the steam that was leaking, * * * the front end of the (first) coach was iced up.' Testimony of other witnesses established that in cold weather nearby escaping steam will freeze on the steps of the ladder on the back end of the tender.

Plaintiff further testified that when he went to the rear of the tender, he went up the stirrup to the sill, and on up the ladder to the platform near the top of the tender. A nearby flood light gave 'plenty of light'. He 'went right on up' without difficulty and attended to getting water into the tank. When plaintiff was descending the ice covered ladder the escaping steam covered his glasses, 'I couldn't see exactly where I was because I had these glasses on and they blinded me. I was reaching for this ladder, this little ladder here, and I couldn't see it. I was somewhere right along in here (indicating) I don't know exactly where I was, but I was trying to reach this little landing (sill) right here and my foot slipped off the ice on one of those rounds right here, and I fell to the ground, * * * (it was) because of the ice on the ladder (that plaintiff was) caused to slip and fall'.

After his fall plaintiff climbed back into the cab and performed his usual duties on into Green River, the end of his run. At Green River he did not report that he had fallen. He left Green River that night about midnight and 'deadheaded' back to Rawlings. He then reported to the railroad and 'laid-off' saying he was going to the doctor. On December 24, 1947, plaintiff's trainmaster held a hearing concerning plaintiff's violation of rules in failing to promptly report a personal injury. At that hearing plaintiff testified he did not report the fall to his engineer; that he did not report the accident at all; that 'there was some steam and the ladder was frosty and slick'; that there were no 'defects on the engine that could have caused this injury'; and that 'my left foot slipped off of the ladder and I started to put my right foot on the other ladder but I missed it'.

The testimony of other employees who were on the train on that run, as well as the testimony of employees who handled, operated and inspected engine 7026 on the night in question (both before and after plaintiff's run) tended to prove that there was no steam leak under the tender of engine 7026. Such differences in the testimony were for the jury's determination and were foreclosed by the verdict.

On January 8, 1948, plaintiff gave a written and signed statement to his employer and therein said: 'When I went up the ladder was frosty, which was due to the natural weather condition--it was not snowing or storming', etc. 'I think that right where tank sitting or near there was steam coming out of a steam line and a steam heat line and the wind was just simmering the steam up through there, and while I don't know, I am of the opinion that might have made the ladder somewhat frosty in addition to the regular weather. * * * I did not think anything of this (fall) and consequently said nothing to the engineer. * * * The ladder on end of tank, and the ladder I used at time I fell, and the end of the engine tank, all on 7026, were all in first class condition, and complied with U. S. Safety appliances, standard, they were secure, and solid, and as stated only thing was they were frosty and slick, but it was clean, and clear that is, the ladder was clean, and nothing wrong with it at all, or where I fell.' Plaintiff wrote thereon that he had read the report and that it was true. Other facts will be hereinafter noted.

Under the circumstances appearing in the record before us, and in view of plaintiff's explanations of what he had said on December 24, 1947 and on January 8, 1948, the weight and credibility of his testimony were clearly for the triers of the facts. From the verdict returned it is apparent that the jury (as they had a right to do) accepted the version of the occurrence given by plaintiff in his oral testimony at the trial.

Defendant now first contends that the trial court erred in refusing to sustain its motion for a directed verdict because (defendant says) it does not appear plaintiff's injury was due to any violation of the Boiler Inspection Act; that 'slipperiness due to ice or frost from moisture naturally and unavoidably emitted by a locomotive while en route, or from moisture normally present in the atmosphere, is a necessary peril of steam railroading in winter...