Brock v. Gulf, M. & O. R. Co.

• Decision Date: 13 September 1954
• Docket Number: No. 43837,No. 1,43837,1
• Citation: 270 S.W.2d 827
• Parties: Raimondo BROCK (Plaintiff) Respondent, v. GULF, MOBILE AND OHIO RAILROAD COMPANY, a Corporation (Defendant) Appellant
• Court: Missouri Supreme Court

Page 827

270 S.W.2d 827

Raimondo BROCK (Plaintiff) Respondent, v. GULF, MOBILE AND OHIO RAILROAD COMPANY, a Corporation (Defendant) Appellant.

No. 43837.

Supreme Court of Missouri, Division No. 1.

Sept. 13, 1954 Opinion Modified on Court's Own Motion Sept. 29, 1954.

Wayne Ely, Ely & Ely, St. Louis, D. S. Wright, Mobile Ala., of counsel, for (defendant) appellant.

Rene J. Lusser, St. Louis, Robert J. Rafferty, Chicago, Ill., of counsel, for (plaintiff) respondent.

DALTON, Presiding Judge.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for damages sustained when plaintiff stepped from one of defendant's engines into a hole of boiling water, scalding his right foot and leg. The negligence charged and submitted was the failure to provide plaintiff with a reasonably safe place in which to work. Verdict and judgment were for plaintiff for $14,000 and defendant has appealed.

Plaintiff was employed as a brakeman on defendant's southern division between Meridian, Mississippi and Mobile, Alabama, in local freight service, setting out empties and picking up loaded cars. He had been in this service for about five years and had been employed by defendant since May 1920. On September 7, 1950, at about 10:00 a. m. at Quitman, Mississippi, plaintiff and other members of a train crew were engaged in placing four empty cars on a dead end spur or switch track leading into the Broadhead Lumber Company mill. The cars were being shoved ahead of the engine. Plaintiff was riding on the front footboard of the engine when he received a signal to uncouple the engine from the cars. The engine stopped with plaintiff about even with some iron pipes, which constituted a part of a steam jet water pump that extended a few feet above the ground immediately adjacent to the ends of the ties and about 3 feet from the corner of the Broadhead loading dock or platform. Plaintiff stepped down off the engine to pull the pin and cut off the cars when his right foot went down in a hole of boiling water, located within 2 feet of the edge of the engine, 'right at the edge of the ties' and right close to where the pipes went down to the ground. The depth of the hole does not clearly appear, but plaintiff went down 'to the calf' of his leg and his foot and leg were scalded. The leg was dressed and bandaged from the instep up to the knee and the scar tissue subsequently resulting from the injury now extends some eleven inches up his leg.

It is admitted that plaintiff was an employee of defendant and that both plaintiff and defendant were, at the time in question, engaged in interstate commerce. The presence of the hole into which plaintiff stepped, its location, the fact that it was filled with hot water or boiling liquid, that plaintiff stepped from the footboard of the engine into the hole and that his right leg and foot were severely scalded and burned are admitted. Other facts applicable to particular issues will be stated in the course of the opinion.

The petition particularly alleged: '(6) That at or near the northeast corner of said (loading) platform certain pipes leading from the works, engines or boilers of said lumber company run down to the ground in close proximity to said spur * * * and from said pipes large quantities of hot water or other boiling liquid or steam was emitted and allowed and permitted to accumulate in a hole in close proximity to the west rail of said spur * * * which condition existed at the time of the accident herein referred to and for a long time prior thereto, and of which condition the defendant had actual notice or in the exercise of reasonable care and caution on its part should have had notice.' (Italics ours.) To this allegation, defendant answered as follows: 'Defendant denies that it had notice of the condition described in paragraph 6 of plaintiff's petition, and denies that in the exercise of reasonable care and caution it should have had such notice.'

It will be noted that the allegations as to the existence of the hole and the presence of the hot water therein at the time plaintiff was injured, 'and for a long time prior thereto,' was not put in issue by defendant's answer. It is now contended that the court erred in overruling defendant's motion for a directed verdict, and in overruling defendant's motion for judgment in accordance with its motion for a directed verdict; that the evidence is insufficient to prove that defendant was negligent; that the defendant had no notice, actual or constructive, of the presence of the hole of hot water into which plaintiff stepped; that defendant was not responsible for the presence of the hole, or the hot water therein; that there was no evidence as to how long the hole or hot water had been there or that its presence could have been discovered by reasonable inspection; and that the evidence is insufficient to sustain a finding that defendant knew, or could have known, of the presence of the hole or of hot water therein in time to have remedied the condition created thereby before plaintiff's injury.

It was admitted that 'on September 7, 1950, and for a long time prior thereto, there was located in or near the City of Quitman, Mississippi, a group of buildings operated as a saw mill by the Broadhead Lumber Company, which said saw mill was adjacent to defendant's main line in said city and state.' (Italics ours.) The Broadhead spur was 350 to 375 feet in length and extended from defendant's main line to and along the company's loading platform. The track was in regular use by defendant. When the spur track was constructed, an excavation 350 by 12 to 14 feet was made and excessive rains would fill this area with water deep enough to cover the wheels of the freight cars on the spur track. In 1936 or 1937, to relieve this condition, a one-inch steam pipe was 'tapped in' from the main steam line and extended from the boiler room to the side of the spur track and a larger pipe was installed and used as an outlet for the water and by the use of a steam jet the water was removed from the area. 'The only way to get the water out, was to jet it out.' Both pipes were a part of the same apparatus and 'the jet' was 'placed right on the ground.' When the steam was turned on, a suction was created and the water was carried off in a 'sucking up' process. In the 'sucking up' process it would occasionally suck up sand and when the water would get low, bark, trash and other accumulation would get 'in the valve--in the jet,' and it would be cleaned out by hand. When the steam that operated the jet was cut off by closing a valve, the steam would remain in the pipe, and would not condense and drip out, 'unless there was a leak.' The two pipes were present and in use in 1949 when the witness left his employment.

Gabriel Brock, an older brother of plaintiff and a conductor for defendant, had worked in the local freight service in the southern division of defendant off and on for ten years, using the Broadhead spur until approximately two years before plaintiff was injured. He 'used to see' the pipes which constituted a part of the steam jet pump. He saw them every day, except Sunday, when he worked there and 'the small pipe had always had steam in it.' He observed that 'the steam was escaping from the small pipe * * * and dripping out at the bottom too. You could see the vapor * * * coming from the end of the pipe * * * water, hot water * * * You could tell it was hot water.' He saw water around there, not plain because of the bark and rubbish around there, not a big pool of hot water, but 'six inches around the pipe, approximately that * * * right around the pipe, right--came out of the pipe * * * you couldn't see how much water.' In his work he often walked the loading platform and saw the situation on frequent occasions from the platform. He 'saw it, you might say, every day I went in and looked down.' After heavy rains the place where the spur was located filled with water and it had to be pumped off through that larger pipe and off the right of way. He didn't know who pumped it off, but 'they get it out of there, most of it.' On the witness stand, he examined plaintiff's exhibit No. 3, hereinafter referred to, and said he was familiar with the scene and the pipes; that he recognized the place; and that 'it looks just like it did, as I last remember it before this accident happened.' Plaintiff's exhibits Nos. 2 and 3 show a small pipe that crosses above the loading platform and descends to the ground near the corner of the platform, and immediately adjacent to the spur track. Both exhibits also show a larger pipe that extends up from the ground for several feet and then makes a sharp 'U' turn or elbow and, after several feet, it enters a larger pipe.

As to the particular conditions, observed by plaintiff, immediately before and immediately after he scalded his foot and leg, he testified that, before he stepped from the footboard of the engine, he looked down to see where he was going to step. 'It looked alright, * * * couldn't see nothing but bark and chips'; that he 'didn't see no steam,' the 'ground there looked perfect * * * with bark and stuff, just like in other spots * * *. It looked like a perfect roadbed,' and a safe place to get off. He could not see any hole and didn't see it, he saw only 'plywood, bark and rubbish from the mill * * * chips and things'; that after he had scalded his foot and leg, he got upon the platform and looked down but 'could see nothing but some floating bark and chips'; that he still could not see the hole; that his eyesight was good; that he wore glasses, but not walking around, as he could 'see all right'; that rubbish, weeds and grass 'was always there along that bank, they never cut it down'; that he had 'seen those pipes sticking up'; but he didn't know what the pipes were for; that, 'when it rained, there would be water there then'; and that he had never seen water being pumped off, but...