Brown v. St. Louis & S. F. Ry. Co.

• Decision Date: 04 January 1921
• Docket Number: Mo. 16330.
• Citation: 227 S.W. 1069
• Court: Missouri Court of Appeals
• Parties: BROWN v. ST. LOUIS & S. F. RY. CO.

227 S.W. 1069

BROWN v. ST. LOUIS & S. F. RY. CO.

Mo. 16330.

St. Louis Court of Appeals. Missouri

Submitted on Briefs December 10, 1920.

Opinion Field January 4, 1921.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by John J. James against the St. Louis & San Francisco Railway Company. Judgment for plaintiff. Defendant's motions for new trial and arrest of judgment denied, and defendant appeals. Pending appeal, plaintiff died, and Nannie Brown, as his administratrix, was substituted. Judgment affirmed.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for appellant.

Joseph Reilly, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff below brought his action against the defendant for personal injuries sustained, averring that being in the employ of the defendant it was his duty to go onto the locomotives of the defendant while they were in defendant's roundhouse, in the city of St. Louis, and see that the fires were burning properly under the boilers of the locomotives and to ascertain whether the water in the boilers was of the proper depth and in right condition. He avers that on May 19, 1917, in the performance of his duty, he got onto one of defendant's locomotives and that the passageway from the entrance on the locomotive to the fire door in the locomotive was covered with coal to a depth of several inches, which the defendant in coaling the locomotive had placed and left in the passageway; that it was necessary, in order to reach the fire door on the locomotive, for him to walk on and over the coal, and that while he was walking towards the fire door for the purpose of opening it and was about to open the door, he stepped on the coal on the floor of the cab of the locomotive, which caused him to stumble and fall against the boiler and blow pipe of the locomotive, whereby he was burned and injured. Averring negligence of the defendant in so placing the coal and allowing it to remain in the passageway, and in requiring plaintiff to walk thereon to his labor, when defendant knew, or by the exercise of ordinary care would have known that the coal would be likely to cause plaintiff to stumble and fall and be injured while in the performance of his duty; that the negligence of the defendant in placing the coal in the passageway and allowing it to remain there was the direct cause of plaintiff receiving the injury; and that through this negligence plaintiff fell against the boiler and blow pipe and received the injuries described, plaintiff asks judgment in the sum of $5,000.

The answer, after a general denial, avers contributory negligence and assumption of risk. To this there was a reply.

On a trial before the court and jury there was a verdict for plaintiff in `the sum of $2,000, judgment following, from which, after filing proper motions for new trial, as well as in arrest of judgment, and excepting to the overruling of these motions, defendant has duly appealed. Pending the appeal in our court plaintiff died and the action was duly revived in the name of his administratrix, Nannie Brown.

The facts are very few and practically undisputed. It appears that plaintiff, while in the discharge of his duties, went on a locomotive of the defendant, then in the roundhouse, over the floor or gangway of which was a lot of loose coal; stepping over and on this coal, he slipped and fell against the steam pipes and was burned, sustaining injuries which were certainly severe, one of his eyes being permanently injured by the scalding of the steam or the heat of the pipes. It was in evidence that it was a common occurrence for locomotives that were put in the roundhouse to be loaded with coal before being started out, and that particles of coal fell out of the tender while being loaded and were allowed to accumulate on the iron floor of the car or cab of the locomotive. It was not plaintiff's duty, and he had no instructions, to clean this place. He knew, however, that coal very often was found in this position and that it was liable to slip from under him as he walked over it.

Under the evidence it was a question for the jury to determine whether it was actionable negligence on the part of the defendant to leave the coal in this condition on the cab floor of its locomotive. The fact that it had been negligent in that respect on numerous other occasions afforded no excuse for negligence on this particular occasion, although the fact of this negligence may have been known to the plaintiff. Even with that fact present, we do not think that it can be said, as a matter of law, that plaintiff was either guilty of contributory negligence or had assumed the risk incident to walking over this loose coal in the discharge of his duty. It was the duty of...