Berry v. Baltimore & O. R. Co.
| Decision Date | 05 September 1931 |
| Docket Number | 29577 |
| Citation | 43 S.W.2d 782 |
| Parties | BERRY v. BALTIMORE & O. R. CO |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled November 20, 1931.
Kramer Kramer & Campbell, of East St. Louis, Ill., and Fordyce Holliday & White, of St. Louis, for appellant.
Mark D Eagleton, Harry M. Stone, and Allen, Moser & Marsalek, all of St. Louis, for respondent.
Suit for personal injuries by plaintiff, an employee, against defendant, wherein plaintiff recovered, and defendant has appealed. When injured, plaintiff was working as rear brakeman or flagman on one of defendant's freight trains engaged in interstate commerce, and it is conceded that this case is governed by the Federal Employers' Liability Act (45 USCA §§ 51-59). Plaintiff was injured by attempting to alight from the caboose of defendant's train in the nighttime while such caboose was standing on a trestle or open culvert, sometimes called a bridge, over a ravine or creek, and fell some twenty feet to the bottom of such creek or ravine. The train in question was going east from East St. Louis, Ill., to Washington, Ind., which was the end of the run, and the accident occurred near Xenia, Ill., on February 10, 1926.
The facts are few and simple and there is little, if any, controversy except as to the cause of plaintiff's attempt to alight from the caboose at that point. The train was running at night, and, when some four miles west of Xenia, Ill., a hot box was discovered on a box car considerably forward from the caboose where the conductor and plaintiff were riding. Plaintiff says that on discovering this hot box, which was blazing, the train was stopped at that point and that he went forward, obtained a bucket of water at the engine, and put out the blaze of the burning hot box, and, under instructions from the conductor, told the engineer that the hot box would have to be attended to at the next stop at Xenia. The conductor testified that no stop was made there, and that no bucket of water was used to put out the blazing hot box; but admits that the hot box was discovered. However this may be, the material fact remains that both the conductor and the plaintiff knew of the hot box, and that same would have to receive attention when the train stopped at Xenia. Whether the engineer also knew this fact, we think is not very material. All three of these trainmen also knew that this train had orders to go on the passing track at Xenia to let a west-bound train go by, and that to do so it would have to stop just before reaching the switch which the head brakeman, riding on the engine, would open and let this train in on the passing track. This is what was done, and, as the train approached the town of Xenia, the engineer stopped the engine somewhere from one and one-half to three car lengths from the switch connecting the passing track with the main line. The train consisted of forty-two cars and the engine and tender, a rather long train, and, when it stopped, the caboose stood exactly on the bridge or open culvert something over forty feet long and some twenty feet to the ground. The bridge or culvert was just wide enough to carry the track with about the same projection beyond the iron rails as the overhang of the cars and caboose; so that the bottom of the steps leading down from the caboose was about even with the ends of the ties or side of the bridge, and one stepping from those steps as if to the ground would miss the bridge or trestle, and would fall to the ground beneath. This is what plaintiff did on this occasion, and, as he says, when he stepped from the caboose steps as if to the ground, he stepped into space and landed some twenty feet below.
Flaintiff's excuse for doing this is that when the train stopped he did not know, and in the darkness could not see, that the caboose was on this bridge or open culvert, and that the conductor who was riding with him in the cupola of the caboose ordered him to go fix the hot box. He testified:
It was obvious therefore that it was not only dangerous, but a certainty of injury, for one to step off the caboose into this deep ravine. The conductor denied ordering the plaintiff to alight at this point, and testified that nothing was said as to fixing the hot box at that time, and that he did not know that plaintiff was intending to get off the caboose at that time; that the stop at that point was merely for the purpose of opening the switch to let the train pass onto the passing track where it would wait for the passing of the other train, and he had no thought of looking after the hot box until the train was on the side track. The evidence is that it was quite dark at the time and not easy to be seen that the caboose was on this bridge or trestle. It was shown that Xenia was a small town of some six hundred people; that it was nearly two thousand feet from the depot to the point of the switch leading onto the passing track, and about two thousand feet further on to the bridge or culvert where plaintiff was hurt, which point was also outside the corporate limits of the town.
The court instructed the jury not to consider the nature or extent of plaintiff's injuries until after first determining defendant's liability, and we will follow that same plan.
Several grounds of negligence are alleged in the petition, but, as the case went to the jury on only two of such grounds, we need consider only such two; to wit, that defendant and its agents and servants (1) negligently ordered, directed, caused, and permitted plaintiff to alight from said caboose there, causing plaintiff's fall and injuries as aforesaid, although they knew, or by the exercise of ordinary care would have known, of the aforesaid condition, and they negligently assured plaintiff of safety, although it was dangerous and not reasonably safe as aforesaid; and (2) negligently caused and permitted said caboose to stop on said trestle as aforesaid, although they knew, or by the exercise of ordinary care would have known, that it was likely to cause injuries as aforesaid, and was dangerous and not reasonably safe. The answer contains a general denial and pleads assumption of the risk causing this injury, and also plaintiff's contributory negligence as being the sole cause of his injury.
At the trial, the court overruled a demurrer to the evidence asked by the defendant and submitted the case to the jury on instructions covering the two grounds of negligence mentioned. The only instruction given for plaintiff, other than on the measure of damages, in addition to the formal parts and undisputed facts, required the jury to find 'that the defendant, by its agents and servants (other than the plaintiff) stopped said train near Xenia, Illinois, with the caboose thereof on a trestle, and that the step of said caboose extended out to about the edge of said trestle, so that a person alighting from said caboose would fall from said trestle down about twenty feet and sustain injuries, and that it was dark and in the night-time; and if you further find that at the time and place where said caboose stopped on said trestle as aforesaid, if you do so find, plaintiff was in darkness of the night-time and did not know and had no means of ascertaining, if you do so find, that said caboose was on said trestle, and that thereafter the plaintiff was ordered and directed to alight from said caboose there, and did, pursuant to said order, step off said caboose and fall about twenty feet, sustaining injuries; and if you further find that the defendant, its agents and employes (other than plaintiff), in ordering plaintiff to alight from said caboose there, if you so find, failed to exercise ordinary care, and that said defendant, its agents and employes (other than plaintiff) knew, or by the exercise of ordinary care on their part would have known, of the aforesaid conditions, and that by reason thereof, if you so find, it was dangerous and not reasonably safe; and if you further find that the defendant, its agents and employes did cause and permit said caboose to stop on said trestle as aforesaid, and that they knew, or by the exercise of ordinary care on their part would have known, that by reason thereof it was likely to cause injuries to plaintiff as aforesaid, and that it was dangerous and not reasonably safe, if you do so find; and if you further find that the defendant, its agents and employes (other than plaintiff) were guilty of negligence in stopping said caboose on said trestle as aforesaid, if you so find, and in ordering plaintiff to alight from said caboose under the circumstances aforesaid, if you so find, and that plaintiff, while exercising ordinary care for his own safety, if you do so find, was injured as a direct and proximate result of the aforesaid negligence and carelessness on the part of the defendant, its agents and servants (other than plaintiff), then your verdict must be in favor of the plaintiff and against the defendant herein.'
The assigned errors of overruling the demurrer to the evidence and of giving this instruction for plaintiff may well be...
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