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

• Decision Date: 04 March 1958
• Docket Number: No. 29741,29741
• Parties: Hugh F. BRITT (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 130

311 S.W.2d 130

Hugh F. BRITT (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation

(Defendant), Appellant.

No. 29741.

St. Louis Court of Appeals, Missouri.

March 4, 1958.

Albert E. Schoenbeck, Robert C. Ely, St. Louis, for appellant.

Eugene B. Overhoff, St. Louis, James W. Jeans, Hullverson, Richardson, Hullverson & Jeans, St. Louis, of counsel, for respondent.

RUDDY, Presiding Judge.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. Defendant appeals from a judgment of $3,000 in favor of plaintiff. Defendant contends that plaintiff failed to make a submissible case of negligence for the jury.

Plaintiff was a baggage foreman at Union Station in St. Louis, Missouri. At the time of the accident his hours of work were from 6 P.M. to 2:30 A.M. He had been employed by the defendant company for 15 years and in the last 4 of those years he was a baggage foreman. It is admitted by defendant that a part of plaintiff's duties as baggage foreman directly or substantially affected or was in furtherance of interstate commerce. The accident from which plaintiff sustained his injuries occurred at about 10:20 P.M. of March 25, 1955.

Plaintiff was the foreman of a crew of 12 men. It was his duty to direct the loading of mail and baggage in railroad cars that had been placed on tracks in the Union Station. At times he assisted in the loading of mail and baggage in these cars and often would pull the wagons, referred to as 'bull trucks,' when the men were busy and needed such help. His crew of men loaded four trains and assisted in the loading of mail and baggage on another. At the time of the accident they were loading 'Mountain 37,' a Missouri Pacific train.

There are many tracks for incoming and outgoing trains at Union Station. Most of these tracks are under the main shed of the station. The train that was being loaded with mail and baggage at the time of the accident was stationed on Track No. 2. This track is not under the main shed of Union Station. Between Track No. 2 and Track Mo. 3 there is a platform that runs parallel with these tracks. There are four such platforms that are not under the main shed of Union Station and each is covered by an umbrella shed. These umbrella sheds only cover the platforms under them and do not cover the adjoining tracks. The evidence showed there is an open space of 12 to 16 feet between each of the umbrella sheds that cover the platforms. This space permits snow and rain to blow under the sheds onto the platforms.

The tracks and the platforms run from north to south and at the north end of each track there is a mound of steel and concrete to prevent the trains from backing into the waiting room of Union Station. This mound is known as a bumper.

The bull trucks referred to above hold 25 to 35 sacks of mail. They are about 2 1/2 feet high and about 12 feet in length. The sacks of mail weigh from 70 to 100 pounds each. There is a front and back on these bull trucks, but there are no side boards. They are pulled, loaded with mail and baggage, from the Post Office and from points within Union Station by tractors. Several of these bull trucks loaded with mail and baggage were placed on the platform between Track No. 2 and Track No. 3. The contents of these bull trucks were to be transferred to the 'Mountain 37' train.

When plaintiff came to work the evening of the accident it was snowing and had been snowing for some time prior to reaching Union Station at 6 P.M. Plaintiff said there was an inch of snow on the ground when he arrived at the station. The platform between Tracks 2 and 3 had snow on it when plaintiff reported for work. All of plaintiff's witnesses agreed the wind was blowing most of the day and evening and that it had blown snow under the umbrella shed onto the platform. Plaintiff testified that it was snowing at the time he had the accident. He also admitted the wind was blowing at that time.

Some time prior to the accident salt had been spread on the platform from a point beginning at the south end of the first car south of the bumper to a point approximately two car lengths from the beginning point. No salt had been spread from the bumper to the south end of the first car, because this was a passenger car and would receive no mail or baggage. It seems the salt was spread to melt the snow that had accumulated on the platform. The evidence indicated the spreading of the salt was done some time between 7 P.M. and 9 P.M. the evening of the accident. Plaintiff testified he saw the men spreading the salt.

The evidence further showed that at the time of the accident the area on the platform between the bumper and the south end of the first car was covered with snow. The snow in this area was packed solidly and offered a relatively firm footing. However, the evidence further showed that the area of the platform, immediately south of the first car, where the salt had been spread, and more especially where plaintiff fell, was wet and slushy, and the witnesses seemed to agree that a crust had formed on top of the slush. We take their testimony to mean that a crust of snow had formed on top of the slush for it was snowing at the time of the accident. One of the witnesses testified, '* * * it was just a thick crust like there, and slush, and it was slick in there where he fell.' Plaintiff testified he did not know the slush was under the crust and said, 'it all looked alike to me' meaning this area where he fell and the area between the bumper and the end of the first car looked the same.

One of the loaded bull trucks had been placed by a tractor operator between the bumper and the south end of the first car. It will be remembered the testimony shows no salt had been spread in this area. Plaintiff saw that the men who were loading mail and baggage on the train 'Mountain 37' were about ready for another load and no one being around to help, he undertook to pull the aforementioned bull truck down to his loading crew. He testified he took hold of the tongue of the truck and started to pull. When he first started to pull the truck he was in the area where the salt had not been spread and 'had solid footing.' However, after he moved the truck about half a car length south, he testified, 'my feet went out from under me due to the slush that was under that snow--I was down just in an instant.' He said he fell in the area where the salt had been thrown. Plaintiff's version of how and where he fell was verified by some of the witnesses. When he fell he struck a part of the tongue of the truck and the platform injuring a finger. His back and side were injured when the truck struck him in the right side. Plaintiff testified he did not think he needed help to pull the truck. One of the witnesses for plaintiff testified that he was behind the truck plaintiff was pulling. He had his hand on the upper end of the back of the truck, 'just holding onto it, and walking behind it.' He further testified no one else was on the platform at the time.

All of the witnesses, except one, testified they saw no one shoveling snow or slush or attempting to remove it in any manner from the platform. One of the witnesses testified he attempted to clean the slush off the platform and was stopped. When he was asked who stopped him, he said, 'The general foreman told me to go back to the mail, that I was handling mail not cleaning snow.' Plaintiff testified that spreading the salt on snow 'didn't do any good.' Another witness thought the spreading of cinders would prove more effective. In response to a question by counsel for defendant, plaintiff testified he thought the 'snow could have been shoveled' off of the platform.

Defendant contends its motion for a directed verdict or for judgment notwithstanding the verdict should have been sustained because plaintiff failed to prove that defendant failed to exercise reasonable or ordinary care to furnish plaintiff with a safe place to work. The extent of the employer's duty under the Federal Employers' Liability Act is well stated in Reese v. Illinois Terminal Railroad Company, Mo., 273 S.W.2d 217, loc. cit. 221, as follows:

'The Federal Employers' Liability Act does not specifically state a rule that it is the employer's duty to exercise (due, ordinary or) reasonable care in providing the employee with a reasonably safe place to work; but the Act makes the employer liable in damages for any injury to death resulting in whole or in part from his negligence. The rights which the Act creates are federal rights protected by federal rather than local rules of law. The federal rules have been largely fashioned from the common law, except as Congress has written into the Act different standards. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. At common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain. Reasonable care contemplates the precautions commensurate with the dangers to be encountered in the circumstances * or, as has been said by the Supreme Court of the United States in cases involving employers' requisite care in furnishing safe appliances and a safe place to work, "in all cases it is a question of the reasonableness of the care, reasonableness depending upon the danger attending the place or the machinery."* Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Malone v. Gardner, 362 Mo. 569, 242 S.W.2d 516. The employer is not the insurer of his employee's safety. And, it would seem that the employer has fulfilled his duty to his employee if the appliance or tool or place to work furnished is reasonably safe, or if the employer has exercised reasonable care to make it safe. It has been said that, strictly speaking, the test is not whether the tools to be used and the place in...