Bonnarens v. Lead Belt Ry. Co.

• Decision Date: 05 June 1925
• Docket Number: No. 24736.,24736.
• Parties: BONNARENS v. LEAD BELT RV. CO.
• Court: Missouri Supreme Court

273 S.W. 1043

BONNARENS v. LEAD BELT RV. CO.

No. 24736.

Supreme Court of Missouri, Division No. 2.

June 5, 1925.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by Louis B. Bonnarens, by Addle Bonnarens, next friend, against the Lead Belt Railway Company and another. Judgment for plaintiff against the defendant named, and the latter appeals. Reversed and remanded.

Jerry B. Burks, of Farmington, and Parkhurst Sleeth, of Bonne Terre, for appellant.

Foristel, Mudd, Hezel & Habenicht and James T. Blair, all of St. Louis, for respondent.

HIGBEE, C.

This action was commenced December 13, 1921, against Federal Lead Company and appellant to recover damages on account of the death of plaintiff's father, Ben Bonnarens. An amended petition was filed September 1, 1923. At the conclusion of the evidence for the plaintiff the action was dismissed as to Federal Lead Company, and, the defendant standing on a demurrer to the evidence, the cause was submitted, and nine of the jurors returned a verdict for plaintiff, assessing his damages at $10,000, and from a judgment thereon the defendant appeals.

Ben Bonnarens was employed by the defendant as a brakeman to assist in handling cars operated by appellant over its tracks in transporting material to the lead company's shafts and plants. The amended petition alleges it was Bonnarens' duty to ride defendant's locomotives, and that for the convenience of its employés defendant had provided a footboard at the rear end of the tender of its locomotives for them to stand on when riding from one point to another; also a handrail, called by some of the witnesses a grabiron, attached to the tender 3 or 4 feet above the footboard, consisting of a metal rod extending across the end of the tender, and attached to brackets at each corner of the tender, for employés to hold to while riding on the footboard; that it was defendant's duty to provide a reasonably safe place and appliances for its employés to work with and upon, and to use reasonable care that the footboard and handrail were reasonably safe and suitable for the purposes for which they were intended; that, disregarding its duties, defendant carelessly and negligently allowed said footboard and handrail to become in a worn, weakened, loose, rotten, bent, and unsafe condition, which was known to defendant, its servants and agents, or by the exercise of ordinary care could have been known to it, and was unknown to said Ben Bonnarens; that on March 7, 1921, while said Ben Bonnarens, plaintiff's father, as defendant's employé, was in the discharge of his duty as brakeman, and riding on said footboard and holding to said handrail, in line with his duties, said footboard, on account of its worn, rotten, and unsafe condition, gave way, and the loose, bent condition of the handrail turning and slipping, the said Ben Bonnarens was caused to fall from said footboard on defendant's track and in front of its locomotive, and was run over by said tender and engine, producing instant death; that the direct and proximate cause of his death was the negligence and carelessness of defendant, its servants and agents, in permitting said footboard to become in a worn, rotten, weakened, and unsafe condition and said handrail to become loose and bent.

Bonnarens was 6 feet in stature, weighed 200 pounds, and was 26 years of age at the time of his death. He left surviving him his wife, Addle, but no child or children. Plaintiff was born June 26, 1921, 3 months and 19 days after his father's death. Plaintiff's mother was duly appointed and qualified as his next friend.

John Watts testified:

I had worked for the defendant 16 years as machinist foreman, but not in the capacity all the time; saw Bonnarens about 7 a. m., March 7, 1921, at the roundhouse of which I had charge at that time. Bonnarens was switchman or brakeman on engine No. 2, and had been in service 12 or 13 years. My duty with reference to the locomotives was to see after general repairs. The footboard is a pine board about 2×12, 6 feet long, and there is a toeboard 2×6, to keep the foot from slipping over the footboard. The footboard is attached to the tender by bolts and is about 12 inches above the rails. There was no break in it to my knowledge. For convenience of employés riding on the footboard there was a grabiron on the top of the end, to which the footboard was fastened. It is a finch pipe about 6 feet long; it was bent some in the middle, about an inch and a quarter or an inch and a half. It was loose in the brackets. In taking hold of the handrail it would turn. I have ridden on this locomotive; have been on this footboard; don't know that I got on it when the engine was moving. I wouldn't say that I paid any particular attention to this engine. Never saw the footboard after the accident. I couldn't say this footboard was worn out of the ordinary. Saw the engine about 2 or 3 hours after the accident; it had on a new footboard then; didn't see the footboard that was taken off. The handrail was loose in the brackets; it fit close, yet would revolve in these brackets.

Edwin Hood:

I have worked there as a switchman 12 years. I saw Bonnarens at the roundhouse about 7:15 that morning; he worked on engine No. 2. The next time I saw him he was out there in the track, about 10 minutes after I saw him at the roundhouse; he was dead; his legs were broken; the engine was about 200 feet from the body. There was a bend in the handrail close to the middle; don't know how much of a bend; it was loose in the brackets. It is safer if the rod is tight in the brackets. These conditions had existed over a month. It fit fairly snug in these sockets, yet it would turn. The customary way of getting on a footboard as the engine approaches is to raise one foot, grab the rod with one hand, and step on from the end of the ties.

Q. If you got on that footboard, and had hold of that rail with a reasonably firm grip, there would be no danger of losing your hold on that rail, would there? A. Well, I don't know. It never happened to me.

Q. Well, you did have hold of it while it was being used? A. Yes, sir.

Q. And it didn't give you any trouble at any time? A. No; never gave me any. That was my experience.

Q. When you get upon the engine, and grab hold of that iron to hold yourself, what would happen? A. Well, it is liable to turn with you, of course.

Henry Pelot had worked for the Federal Lead Company as locomotive engineer and knew deceased; was familiar with the footboard on engine No. 2; saw the handrail and footboard, but never paid any attention; had observed the handrail for 6 or 7 months before Bonnarens was hurt; it was bent in the middle; couldn't say how much; was loose in the brackets; had worked on other engines 13 years; the grabirons were not loose on them; to be safe, they should be stationary.

J. H. Flannery:

I was employed by the Lead Belt Railway as engine foreman in March, 1921. Bonnarens bad worked with my crew for a year and a half up to time of accident. He was in the engine a minute or two, and he got down to set a switch 40 or 50 feet from the rear end of the engine. The next time I saw him he was lying on the track after the engine had passed over him. I have rode on that footboard considerably. It could not have been a very old one. I did not examine it particularly until after it was on the "rip" track, 30 or 40 minutes after he was hurt. It was pushed up from the bottom on the righthand side of the tank; not right in the center, but more towards the end. I noticed quite often there being a little bend in the handrail; it would turn a little bit if you would get hold of it.

John H. Armstrong:

I ran engine No. 2. Bonnarens was switchman. He was in the cab when we started out, about 7 in the morning. We had only gone a short ways until he got out to throw a switch. He was on the right side; he got on the end of the footboard, and give me a sign with his left hand, and I went on; that was the last time I saw him alive. He was then on the footboard. I don't know what he had hold of after he got on, but he had taken hold of the handrail with his `right hand, when he stepped on the end of the board and gave me a sign to back up. I next saw him lying on the track after I had passed over him. I moved the engine after he gave the sign between 800 and 1,000 feet. I was running slow, not much faster than you could walk. He had been working on the engine a couple of months. I had seen the footboard that day before the accident. It was in good condition as far as I know. I walked around the engine twice that morning before we left the pit, and while I was not looking for a broken footboard, but if it had been broke I would naturally have seen it, because I was looking for things to repair. No break in it day before to my knowledge. Well, the engine had started, and he got off to throw the switch, but another man came along and throwed it. The handrail is a piece of gas pipe, and runs from the end sill on the tank clear up to the top of the tank. This other rail that extends crossways of the tender we call the grabiron because a man always grabs it when he gets on the foot! board. I saw the footboard a few minutes after the accident; it was broken; it wasn't broken clear in two; just bulged up and splintered, like it had had a hard pry on it; it wasn't broken in two; board is about 10 inches above the rails.

Over defendant's objection, it was shown that the widow of the deceased did not, within 6 months after the death of Bonnarens, bring action for damages on account of his death. Appellant assigns as...