Brady v. Wabash Ry. Co.

• Decision Date: 02 April 1932
• Docket Number: No. 29996.,29996.
• Citation: 49 S.W.2d 24
• Parties: THOMAS J. BRADY v. WABASH RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

49 S.W.2d 24

THOMAS J. BRADY v. WABASH RAILWAY COMPANY, a Corporation, Appellant.

No. 29996.

Supreme Court of Missouri, Division One.

April 2, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

REVERSED.

Homer Hall and Woodward & Evans for appellant.

(1) The trial court erred in failing and refusing to give defendant's instructions in the nature of demurrers to the evidence, for the reasons listed below: (a) While plaintiff relies upon a violation of the Safety Appliance Act, the evidence fails to show any breach of law by defendant in appointing plaintiff to inspect a drag of cars upon a transfer or interchange track to determine whether or not they complied with the provisions and standards of the law so as to be acceptable. The delegation to plaintiff of the duty to make the inspection was the only act committed by defendant, and there was no such "use" or "hauling" of the defective car as prohibited by the act. Sherry v. Railroad Co., 30 Fed. (2d) 487 (writ of certiorari denied, 280 U.S. 555, 74 L. Ed. 611, 50 Sup. Ct. 16); Baltimore & O. Railroad Co. v. Hooven, 297 Fed. 919; Baltimore & O. Railroad Co. v. United States, 242 Fed. 420; Kaminski v. Railroad Co., 180 Minn. 519, 231 N.W. 189 (certiorari denied, 51 Sup. Ct. 78); McCalmont v. Railroad Co., 238 Fed. 736; Flack v. Ry. Co., 285 Mo. 28, 224 S.W. 423 (certiorari denied, 256 U.S. 690, 65 L. Ed. 1173, 41 Sup. Ct. 449). It was essential that an inspection be made before there could be an acceptance or "use" of the cars by the defendant railroad, for it was not only the right of defendant, but its duty, to reject or refuse to "use" any car not complying with the provisions of the Safety Appliance Law, 2 Roberts, Federal Liabilities of Carriers (2 Ed.) sec. 666, p. 1266; United States v. Railroad Co., 287 Fed. 780; United States v. Railroad Co., 30 Fed. (2d) 150. The fact that the car on which plaintiff was injured was a "Wabash" car cannot affect the question of liability, for the evidence shows that the car had been out of the possession of defendant, and it was the duty of the railroad in whose possession it was at the time the defect appeared to repair it before putting it in use. 2 Roberts, Federal Liabilities of Carriers (2 Ed.) sec. 666, p. 1265, and cases noted. (b) Plaintiff was not within the class of employees protected by or included in the provisions and benefits of the particular section of the Safety Appliance Act relied upon, and, therefore, could not recover on account of its alleged breach. 2 Roberts, Federal Liabilities of Carriers (2 Ed.) sec. 715, p. 1346; Kansas City, M. & O. Ry. Co. v. Wood (Texas), 262 S.W. 520; Naftz v. Railroad Co., 13 Fed. (2d) 389; St. Louis & S.F. Railroad Co. v. Conarty, 238 U.S. 243, 50 L. Ed. 1290, 35 Sup. Ct. 785; Williams v. Railroad Co., 135 Ill. 491, 26 N.E. 661. Inasmuch as plaintiff was charged with the duty of determining whether or not the cars complied with the requirements of the Safety Appliance Act, he was in reality the alter ego of the defendant railroad, a vice-principal working for the protection of the employees, who would thereafter use or haul the car. Ash v. Woodward & Tiernan Printing Co. (Mo. Sup.), 199 S.W. 999; Coontz v. Railway Co., 121 Mo. 652, 26 S.W. 663; Shimp v. Stove Co., 173 Mo. App. 423, 158 S.W. 867; Corby v. Tel. Co., 231 Mo. 417, 132 S.W. 719; Kansas City, M. & O. Ry. Co. v. Wood, 262 S.W. 520. An individual who does not come within the class protected or regulated by a statute cannot recover damages on account of its breach or violation. Anderson v. Wells, 220 Mo. App. 19, 273 S.W. 233, and cases cited; State ex rel. Anderson v. Daues, 237 S.W. 603; The Eugene F. Moran v. Railroad Co., 212 U.S. 466, 53 L. Ed. 600, 29 Sup. Ct. 339. (c) Absent a violation of the Safety Appliance Act and plaintiff's classification as an employee thereunder, the defense of assumption of risk applies with full force, and plaintiff, as an inspector, assumed the risk of injury from any and all defects which it was his duty to discover. Sherry v. Railroad Co., 30 Fed. (2d) 487; Roberts v. Tel. Co., 166 Mo. 370, 66 S.W. 155; Hulse v. Tel. Co., 164 Mo. App. 126, 147 S.W. 1124; Shelton v. Kirksville L. & P. Co., 258 Mo. 534, 167 S.W. 544; Rutledge v. Swinney, 156 S.W. 478; McCarver v. Lead Co., 216 Mo. App. 370, 268 S.W. 687; Rowden v. Mining Co., 136 Mo. App. 376, 117 S.W. 687; Corby v. Tel. Co., 231 Mo. 417, 132 S.W. 719; Berry v. Kansas City, 107 S.W. 415; Henson v. Packing Co., 113 Mo. App. 618, 88 S.W. 166; Flack v. Ry. Co., 285 Mo. 28, 224 S.W. 422 (certiorari denied, 256 U.S. 690, 65 L. Ed. 1173, 41 Sup. Ct. 449). (d) The plaintiff's injury was the direct and sole result of his own failure to perform his duty to properly inspect the car and discover the condition of the handhold, and he is not entitled to recover for such injuries, and the court should have so instructed the jury. Frese v. Railroad, 263 U.S. 1, 68 L. Ed. 131, affirming 290 Mo. 501; Davis v. Kennedy, 266 U.S. 147, 69 L. Ed. 212; Great Northern Railway Co. v. Wiles, 240 U.S. 444; Flack v. Ry. Co., 285 Mo. 46; Southern Railway Co. v. Hylton, 37 Fed. (2d) 843; Paster v. Railroad Co., 23 Fed. (2d) 908. (2) The verdict of $25,000 is so outrageously excessive that the trial court erred in permitting it to stand. Kane v. Ry. Co., 251 Mo. 13, 157 S.W. 644; Hughes v. Schmidt, 30 S.W. (2d) 468; Jamison v. Ornamental Iron Co., 30 S.W. (2d) 984; Porter v. C.B. & Q. Co., 28 S.W. (2d) 1035; Clayton v. Wells, 26 S.W. (2d) 969; Nelson v. Boiler Co., 205 S.W. (2d) 906; Freese v. St. L. Pub. Ser. Co. (Mo. Sup.), decided June 24, 1931, not yet reported.

Mark D. Eagleton, Harry M. Stone and Allen, Moser & Marsalek for respondent.

(1) Upon the conceded facts there was a violation of Section 11 of the Federal Safety Appliance Act, in that appellant permitted to be hauled and used on its lines a freight car with an insecure handhold or grab-iron on the roof at the top of the ladder. (a) The fact that the handhold pulled loose, under plaintiff's weight, when he attempted to use it in the ordinary manner to get on top of the car, together with plaintiff's description of its condition, sufficiently shows that it was insecure, within the meaning of the Federal Safety Appliance Act. Wolfe v. Payne, 294 Mo. 185, affd. Davis v. Wolfe, 263 U.S. 239, 68 L. Ed. 284; Clark v. Railroad Co. (Mo. Sup.), 300 S.W. 758; Didinger v. Railroad Co., 39 Fed. (2d) 798; Philadelphia & R. Ry. Co. v. Auchenbach, 16 Fed. (2d) 550. (b) The car in question was not "out of service" at the time of plaintiff's injury. It was one of a train of cars, all coupled together, in active use in hauling freight. The temporary halt of the train, on the Wabash track, did not take it out of use; the stop was made in order that the cars might be inspected, the train broken up, and the cars and their contents classified according to their respective destinations. The train, and the cars therein, were in use, in the sense in which that word is employed in the Federal Safety Appliance Act. Title 45, U.S.C. sec. 11; Johnson v. Southern Pac. Co., 196 U.S. 1, 49 L. Ed. 362; Delk v. Railroad Co., 220 U.S. 580, 55 L. Ed. 590; Chicago, G.W. Railroad Co. v. Schendel, 267 U.S. 287, 69 L. Ed. 614, 159 Minn. 166, 198 N.W. 450; United States v. Ry. Co., 149 Fed. 486; Chicago, M. & St. P. Ry. Co. v. United States, 165 Fed. 426; Erie Railroad Co. v. Russell, 183 Fed. 722, 220 U.S. 607; United States v. Ry. Co., 184 Fed. 28; Southern R. Co. v. Snyder, 187 Fed. 492, id. 205 Fed. 868; Chesapeake & O. Railroad Co. v. United States, 226 Fed. 685; Mobile, J. & K.C. Railroad Co. v. Bromberg, 141 Ala. 258, 37 So. 395. (c) Appellant not only used the car, within the meaning of the Federal statute, but permitted the Terminal Railroad Association to haul it over appellant's exchange track, a distance of two miles, and to place it on a live track in its switch yard. Appellant thereby violated the statute to the same extent as if the hauling and placing of the train had been done by appellant's own employees. St. Louis, I.M. & S. Railroad Co. v. Taylor, 210 U.S. 281, 52 L. Ed. 1061; Chicago, etc. Railroad Co. v. United States, 220 U.S. 559, 55 L. Ed. 582; United States v. Railroad Co., 235 Fed. 965. (2) The fact that respondent was a car inspector, charged with the duty of inspecting the train, does not relieve appellant from liability for his injury, due to a violation of the act. (a) Where a failure of a railway company to comply with the Safety Appliance Act is the proximate cause of an accident resulting in an injury to an employee while in the discharge of his duty, the employee may recover, although the operation in which he was engaged was not of the kind in which the appliances required by the act were specifically designed to furnish him protection. Wolfe v. Payne, 294 Mo. 173, affirmed Davis v. Wolfe, 263 U.S. 239, 68 L. Ed. 284; Louisville & N. Railroad Co. v. Layton, 243 U.S. 617, 61 L. Ed. 931; Chesapeake & O. Railroad Co. v. Smith, 42 Fed. (2d) 111. (b) The carrier's liability for injury to an employee, due to a violation of the Safety Appliance Act, is absolute. This liability is based not upon any supposed fault on the carrier's part, but upon the legislative policy adopted by Congress. Whether either appellant or respondent, or both, were at fault, as judged by ordinary standards, is entirely immaterial, if the act was violated, and respondent injured as a result. Consequently, the fact that the duty of inspection was enjoined on respondent cannot defeat respondent's action. St. Louis, I.M. & S. Railroad Co. v. Taylor, 210 U.S. 281, 52 L. Ed. 1061; Chicago, B. & Q. Railroad Co. v. United States, 220 U.S. 559, 55 L. Ed. 582; Bohm v. Railroad Co., 161 Minn. 74, 200 N.W. 804. (3) The respondent did not assume the risk. The common law defense of assumption of risk is not available where the employee's injury is the result of a violation of the Safety Appliance A...