Brady v. Terminal R. Ass'n of St. Louis

• Citation: 102 S.W.2d 903,340 Mo. 841
• Decision Date: 24 March 1937
• Docket Number: 33525
• Parties: Thomas J. Brady v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

102 S.W.2d 903

340 Mo. 841

Thomas J. Brady v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 33525

Supreme Court of Missouri

March 24, 1937

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Judgment reversed.

T M. Pierce, J. L. Howell and Walter N. Davis for appellant.

Plaintiff in inspecting Wabash car No. 76085, for defects, was not within the provisions of the Safety Appliance Act, or the rule or regulation. Kansas City M. & O. Ry. Co. v Wood, 262 S.W. 520; Rittenhouse v. Railroad Co., 299 Mo. 199, 252 S.W. 945; Railroad v. Conarty, 238 U.S. 243, 35 S.Ct. 785, 59 L.Ed. 1290; Lang v. Railroad Co., 255 U.S. 455, 41 S.Ct. 381, 65 L.Ed. 729; Railroad v. McWhirter, 229 U.S. 265, 57 L.Ed. 1179; Noftz v. Railroad Co., 13 F.2d 389; L. & N. Railroad Co. v. Cook, 150 Ky. 689, 150 S.W. 802; Brady v. Wab. Railroad Co., 49 F.2d 31. (a) Where the accident which results in the injury merely creates an incidental condition or situation that results in the injury, the failure to comply with the Safety Appliance Act, or the rule or regulation is not the proximate cause of the injury. Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284; Railroad v. Conarty, 238 U.S. 243, 35 S.Ct. 785, 59 L.Ed. 1290; Lang v. Railroad Co., 255 U.S. 455, 41 S.Ct. 381, 65 L.Ed. 729; Railroad v. McWhirter, 229 U.S. 365, 57 L.Ed. 1179. (b) The Federal and common-law rule is that a railroad employee must look for his own safety, and that a defendant is not liable except that it actually discovered the danger. Toledo, etc., Railroad Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513; Martin v. Wabash, 30 S.W.2d 735; Allen v. Terminal Railroad, 68 S.W.2d 709. (c) The doctrine of assumption of risk applied to licensees and invitees. Stein v. Battenfield O. & G. Co., 327 Mo. 804, 39 S.W.2d 345. (d) Plaintiff pleaded the Federal Safety Appliance Act. Consequently it was involved, and is exclusive. Minneapolis, etc., Railroad Co. v. Popplar, 237 U.S. 369, 35 S.Ct. 609, 59 L.Ed. 1000; Moore v. Railroad Co., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755; Gilvary v. Railroad Co., 292 U.S. 57, 54 S.Ct. 573, 78 L.Ed. 1123. (e) The rule that cars having defective safety appliances should not be offered in exchange was not enacted for the benefit of car inspectors. Thomson v. Downey, 78 F.2d 487; C. & O. Ry. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 945, 70 L.Ed. 914; C. & O. Ry. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207.

Eagleton, Waechter, Yost, Elam & Clark for respondent.

(1) The plaintiff made a submissible case for the jury under the Safety Appliance Act (45 U.S.C. A., Sec. 1 et seq.), because although the primary purpose of the act was to promote the safety of those employed in the operation of, and travelers upon, interstate railroads, the benefits and protections of the act are extended to any person to whose safety its enactment actually contributes. (a) Plaintiff, being employed in the operation of an interstate railroad, came directly within the general class intended to be protected by, and within the purview of, the Safety Appliance Act. 45 U.S.C. A., Sec. 11; United States v. Railroad Co., 149 F. 486; Wabash Railroad Co. v. United States, 93 C. C. A. 393, 169 F. 1; United States v. Railroad Co., 43 F.2d 300; Fairport C. & E. Railroad Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1146; Philadelphia & R. Railroad Co. v. Eisenhart, 280 F. 271; Lehigh Valley Railroad Co. v. Howell, 6 F.2d 784; Minneapolis & St. L. Railroad Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 95; San Antonio & A. T. Railroad Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110; Henry v. Railroad Co., 61 S.W.2d 341; Delk v. Railroad Co., 220 U.S. 580, 31 S.Ct. 617, 55 L.Ed. 590; Chicago, B. & Q. Railroad Co. v. United States, 220 U.S. 559, 31 S.Ct. 612, 55 L.Ed. 582; St. Louis, I. M. & S. Railroad Co. v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061; Ecclesine v. Railroad Co., 58 Mont. 470, 194 P. 143. (b) The fact that plaintiff was a car inspector does not take him out of the purview of the act because: The act contains no provisions excluding car inspectors from its terms. 45 U.S.C. A., Sec., 1 et seq. Liability under the act springs from it being unlawful for the carrier to use cars not equipped as required, and not from the nature of the work of, the situation within which, or the use to which the appliance is put by, the person injured. Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284, affirming Wolfe v. Payne, 294 Mo. 170, 241 S.W. 915; Louisville & N. Railroad Co. v. Layton, 243 U.S. 617, 37 S.Ct. 456, 61 L.Ed. 931; Swinson v. Ry. Co., 294 U.S. 529, 55 S.Ct. 517, 79 L.Ed. 1041. The act imposes an absolute duty upon the carrier, and in effect makes the carrier an insurer of the place in which, and the required appliances with which, interstate railway employees work. St. Louis, I. M. & S. Railway Co. v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061; Lehigh Valley Railroad Co. v. Beltz, 10 F.2d 74. (2) In the event the Safety Appliance Act was inapplicable, the plaintiff made a submissible case under common law theories of negligence because: (a) Plaintiff was defendant's invitee and it owed to him the positive duty to exercise ordinary care for his safety, and to furnish him with a reasonably safe car without any defects which it could have discovered by a reasonable inspection. Simmons v. K. C. Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Gilliland v. Bondurant Co., 332 Mo. 881, 59 S.W.2d 679; Bennett v. Railroad Co., 102 U.S. 577, 26 L.Ed. 235; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Tinkle v. Railroad Co., 212 Mo. 445, 110 S.W. 1086; Roman v. King, 289 Mo. 641, 233 S.W. 161; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Cudahy Packing Co. v. Luyben, 9 F.2d 32; Roddy v. Railroad Co., 104 Mo. 234, 15 S.W. 1112; Rooney v. Railroad Co., 220 Mo.App. 273, 286 S.W. 153; Sasnowski v. Railroad Co., 207 S.W. 865; Hawkins v. Railroad Co., 182 Mo.App. 323, 170 S.W. 459; Fassbinder v. Railroad Co., 126 Mo.App. 563, 104 S.W. 1154; Strayer v. Railroad Co., 170 Mo.App. 514, 156 S.W. 732; St. Louis S. F. Railroad Co. v. Ewan, 26 F.2d 619; Waldron v. Payne, 277 F. 802; Teal v. Am. Mining Co., 87 N.W. 837; Moon v. Railroad Co., 48 N.W. 679; St. Louis, I. M. & S. Railroad Co. v. Bass, 140 S.W. 860; Haye v. Railroad Co., 120 F. 712. (b) Defendant, in law, had knowledge of the defective condition of the car in question. Brady v. Railroad Co., 49 S.W.2d 24; United States v. Railroad Co., 287 F. 780; Baltimore & O. S.W. Railroad Co. v. United States, 242 F. 420; Doyle v. Railroad Co., 31 S.W.2d 1010. (c) The mere fact that plaintiff was a car inspector did not relieve defendant of the duty which it owed to him as its invitee. Degitz v. Railroad Co., 97 Kan. 654, 156 P. 745. (3) The rule that "yard employees must look out for their own safety" has no application to the instant case, and plaintiff, as defendant's invitee, was entitled to ordinary care from it, subject to his duty to exercise ordinary care for his own safety. Authorities under Point (2), supra; Doyle v. Railroad Co., 31 S.W.2d 1010; Burch v. Railroad Co., 40 S.W.2d 688; Degitz v. Railroad Co., 97 Kan. 654, 156 P. 745.

OPINION

Hays, J.

The appellant, Terminal Railroad Association of St. Louis, hereinafter called the Terminal, seeks the reversal of the judgment below for $ 15,000, the amount assessed against it by the verdict of the jury as compensation to the respondent, plaintiff below, for personal injuries sustained by him through the alleged want of due care on the part of the Terminal with respect to a certain boxcar on which the plaintiff received the injuries while inspecting it for his employer, the Wabash Railway Company (which will be referred to as the Wabash), upon whose inbound or receiving track the car had been placed for that purpose by the Terminal. Both railroad companies are common carriers engaged in interstate commerce and have a connection at Granite City, Illinois.

The plaintiff, in making the inspection, stood upon one of the side ladders of the car and with the aid of his flashlight looked at the grabiron on top and near the edge of the car and then tested that appliance by pulling on it. When next he placed his weight upon it in an attempt to pull himself up on top of the car, the grabiron and the board to which it was attached came loose, causing him to fall with them to the ground, where upon examining the board he found it had become rotten from end to end on the under side, and to some extent on the upper side around the bolts by which the grabiron was attached to it.

The plaintiff first brought suit to recover against his employer, the Wabash, for his injuries, predicating his action upon the Federal Safety Appliance Act alone (45 U.S.C. A., Secs. 1 et seq.). Within a few months thereafter, and before that case went to trial, he brought the present suit against the Terminal, basing the same both upon said act and alleged common-law liability. The former case was ultimately determined adversely to him by this court. [Brady v. Wabash Ry. Co., 329 Mo. 1123, 48 S.W.2d 24, 83 A. L. R. 655.] Additional facts may be found there and need not be stated here. Also, since principles of law announced there are largely determinative of the claim of liability as based upon said statute and the same injury, we will omit plaintiff's citations on the first branch of this case as they are much the same as those cited in the former case. However, we have re-examined them preparatory to this writing.

Plaintiff's petition on which the case was tried charged, and plaintiff's instruction to the jury predicated a recovery upon a finding, in the conjunctive, that plaintiff's injuries were the proximate result of: (1) A violation by defendant...