Bell v. Terminal Railroad Ass'n of St. Louis

• Decision Date: 18 May 1929
• Parties: George Bell, Appellant, v. Terminal Railroad Association of St. Louis
• Court: Missouri Supreme Court

18 S.W.2d 40

322 Mo. 886

George Bell, Appellant, v. Terminal Railroad Association of St. Louis

Supreme Court of Missouri

May 18, 1929

Motion for Rehearing Overruled June 7, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamiltion, Judge.

Reversed and remanded.

R. T Brownrigg and Mason, Altman, Goodman & Flynn for appellant.

(1) It is the duty of an employer to exercise ordinary care to furnish his employee with a reasonably safe place for his work and to exercise ordinary care to keep it so. (2) There was evidence tending to show that the step from which the plaintiff undertook to dismount was icy; that it was dangerous; that it remained in that condition on the switch engine from nine in the morning, when the plaintiff and his superior, the engineer, mounted the engine over that step until three in the afternoon when they were relieved, and that it was the duty of the engineer to see that the steps were kept free of ice. The icy condition of this step, as shown by plaintiff's evidence, was evidence tending to show that the defendant had violated the duty to exercise ordinary care to furnish plaintiff with a reasonably safe place to work. Plaintiff, of course, knew of the icy condition of the step and of the danger incident to its use. However, where the defendant fails to perform his duty in the matter of furnishing a safe place, plaintiff is not barred of recovery, because he has knowledge of the danger, unless the danger is so imminent and threatening that a person of ordinary prudence would have refused to incur the risk. Defendant's Instruction 5 is erroneous in that it instructs the jury that plaintiff is barred of recovery if he knew of the icy condition of the step and knew that there was danger of slipping if he stepped upon it. It did not submit to the jury the question as to whether or not the plaintiff failed to exercise ordinary care for his own safety in putting his foot upon the step. That is the test which the instruction ignored. Evans v. General Explosives Co., 293 Mo. 364; Edmondson v. Hotel Statler Co., 306 Mo. 216; Corby v. Telephone Co., 231 Mo. 442; George v. Railroad, 225 Mo. 367; Jewell v. Bolt & Nut Co., 231 Mo. 199; Littig v. Heating Co., 292 Mo. 241; Wendler v. House Furnishing Co., 165 Mo. 536. (3) The defendant, in offering Instruction 5, broadened the issues. It was not pleaded in defendant's answer that plaintiff was guilty of contributory negligence in putting his foot on the icy step. If contributory negligence is submitted in an instruction, the act of contributory negligence relied on must be both within the pleadings and within the evidence. McKenzie v. Randolph, 257 S.W. 126; McIntyre v. Ry. Co., 286 Mo. 234; Degonia v. Railroad, 224 Mo. 589. (4) The court erred in refusing to allow the plaintiff to show that trainmen are accustomed to alight from trains going as fast as ten miles an hour. He was charged with negligence in defendant's answer in attempting to alight from a moving train. This excluded evidence, as to the custom of trainmen in getting off trains going that fast, was clearly competent and relevant to the issue of negligence raised by the answer.

J. L. Howell and Roy W. Rucker for respondent.

The demurrer to the evidence should have been sustained. Horton v. Railroad, 233 U.S. 492; Boldt v. Railroad, 245 U.S. 44; Tomasco v. Railroad, 256 F. 14; Pryor v. Williams, 254 U.S. 43; Schaff v. Hendrich, 207 S.W. 543; Ry. Co. v. Delaney, 264 S.W. 735; Boyet v. Davis, 269 S.W. 413.

OPINION

Gantt, J.

Plaintiff, in seeking to recover $ 25,000 damages for personal injuries, alleges that he was a fireman in the service of defendant and was injured in attempting to alight from a moving engine, the steps of which were covered with ice and snow which caused him to slip and fall to the ground.

The negligence charged was a failure of defendant "to provide plaintiff with a reasonably safe place and reasonably safe instrumentalities for the performance of his work."

The answer was a general denial, with a plea of assumption of risk, and pleas of negligence of plaintiff "in assuming a position upon the step board of an engine while the same was in motion so as to be in danger of falling therefrom," and "in assuming a position upon the step on the side of the engine while the same was in motion, and in attempting to alight therefrom while the same was in motion."

The reply was a general denial. Judgment was for defendant, and plaintiff appealed.

The evidence for plaintiff tends to show that on January 1, 1925 plaintiff, with three weeks experience as a fireman, entered the service of defendant as an extra fireman to fire switch engines used in moving cars from St. Louis, Missouri, to Relay Station, Illinois, and vice versa; that on the morning of January 3, 1925, plaintiff reported for duty to the defendant at the Twelfth Street roundhouse, in St. Louis, and was there instructed to report at Relay Station, Illinois; that he did so, and was assigned to engine 81, the steps of which were covered with ice; that he worked as fireman on said engine with engineer Burke from nine A. M. until 2:30 P. M. of that day, when, on their arrival at Washington Avenue station, in St. Louis, with a Pennsylvania train from Relay Station, they were relieved by engineer John Ditch and his fireman; that as they approached Washington Avenue station, engineer Burke, from whom plaintiff received orders, informed plaintiff that he (Burke) would leave the engine at said station, and directed plaintiff "to stay on the engine and go to the [Twelfth Street] roundhouse to receive further orders;" that engineer Ditch and his fireman boarded the engine as it was moving into said station, and thereupon Burke asked Ditch if he would slow down at Twelfth Street on his way with the passenger train to the Union Station to permit ...