Burch v. Cleveland, C., C. & St. L. Ry. Co.

• Citation: 40 S.W.2d 688,328 Mo. 59
• Parties: Frank Burch v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant
• Decision Date: 24 June 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 688

328 Mo. 59

Frank Burch v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant

Supreme Court of Missouri

June 24, 1931

Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskopf, Judge.

Affirmed.

S W. Baxter and Charles A. Houts for appellant H. N. Quigley of counsel.

(1) By plaintiff's Instruction 1 this cause was submitted to the jury upon the sole charge that the dwarf signal over which the plaintiff stumbled "became defective in that a bolt became loose and that thereby the lamp in said dwarf signal would not stay lighted and would go out." There was no evidence upon which the jury could find that at the time of his injury the light went out because of a bolt becoming loose. Plaintiff could not recover without showing such causal connection. Van Bibber v. Swift & Co., 228 S.W. 75; Warner v. Railroad, 178 Mo. 133; Coin v. Lounge Co., 222 Mo. 488. (2) There was no evidence of any knowledge on defendant's part of a bolt being loose in the dwarf signal so as to cause the light to go out; nor was there any evidence of any notice to the defendant of such defect. Two witnesses testified as to having notified the "Big Four dispatcher" of the light being out some weeks before Burch was injured. There was no evidence of the duties or authority of this dispatcher. Without proof that this particular dispatcher was authorized to receive such notice, or that he had control and supervision of this target, there was no proof that the defendant had such notice. 39 C. J. 438; Humphrey v. Lusk, 196 Mo.App. 442; McCaffrey v. Tamm Bros., 143 Mo.App. 24; Brown v. Hershey, 65 Mo.App. 162. (3) The undisputed evidence is that the light in the dwarf signal was for the sole purpose of giving signals to trains, and not for the purpose of indicating its location to those working in the yards. Such being the case, the defendant owed no duty to Burch to keep it lighted. Mansfield v. Wagner Electric Mfg. Co., 242 S.W. 400; Rutledge v. Ry. Co., 110 Mo. 312; Degonia v. Railroad, 224 Mo. 564; Manche v. Basket & Box Co., 262 S.W. 1021; Railroad v. Conarty, 23 U.S. 243; Lang v. N. Y. Central, 255 U.S. 455; C. B. & Q. Railroad Co. v. Murray, 277 P. 703. (4) When an employee (which Burch was not) uses an instrumentality for a purpose for which it was not provided, he cannot recover for injury caused by its being defective without alleging and proving that such use was known to and acquiesced in by the employer. C. B. & Q. Railroad v. Murray, 277 P. 703; Nelson v. Railway Co., 246 U.S. 253; LaBatt, Mast. & Serv. (2 Ed.) 921; Wood v. Railway Co., 104 Va. 630; Felch v. Allen, 98 Mass. 572; McCauley v. Railroad Co., 10 App. (D. C.) 560; Morrison v. Fibre Co., 70 N.H. 406; Chicago, etc., Railway Co. v. Murray, 85 Ark. 600; Campbell v. Railway Co. (Ore.), 250 P. 622; Babcock Bros. Lbr. Co. v. Johnson, 120 Ga. 1030. (5) Burch was not an employee of defendant, and as to him the defendant owed only the duty of using reasonable care to see that the premises were safe for the purposes for which Burch was required to use them. 1 Thompson on Negligence, p. 890, sec. 968. (6) At the time Burch was injured he was not engaged in the performance of his duties, but was accommodating Haverly, whose duty it was to throw the switches in the west end of the yard. Because he was not then engaged in the performance of his duties he cannot recover. St. Louis & O'Fallon Coal Co. v. Industrial Comm., 325 Ill. 574.

Charles P. Noell, Charles L. Moore and Hensley, Allen & Marsalek for respondent.

(1) An employee of an independent contractor, whose duties require him to go upon premises under the control of another pursuant to a contract or arrangement between the latter and such independent contractor, is an invitee on such premises, and the proprietor, in control of the premises, owes to such servant the duty of exercising ordinary care to maintain the premises in a reasonably safe condition for such use. Ford v. Dickinson, 280 Mo. 206; Clark v Railroad, 234 Mo. 396; Hutchinson v. Safety Gate Co., 247 Mo. 71; McCullen v. Amusement Co., 198 Mo.App. 130; Applegate v. Railroad, 252 Mo. 173; O'Donnell v. Patton, 117 Mo. 13; Chandler v. Railroad Co., 251 Mo. 592; Glaser v. Rothschild, 221 Mo. 180; Crawford v. Stock Yards Co., 215 Mo. 420; Jetter v. Railway Co., 193 S.W. 958; Shelby Iron Co. v. Cole, 208 Ala. 657; Carr v. Laundry Co., 31 Idaho 266, 170 P. 107. (2) One who expressly or impliedly invites the servant of an independent contractor to come upon premises maintained and controlled by him, for a purpose in connection with his business, owes to such servant the same duty to keep such premises in a reasonably safe condition for such use by said servant as if said servant were his own employee. Clark v. Railway Co., 234 Mo. 396; Jewell v. Bolt & Nut Co., 245 Mo. 720; Hutchinson v. Safety Gate Co., 247 Mo. 71; Ryan v. Transit Co., 190 Mo. 621; Young v. Oil Co., 185 Mo. 634; Jetter v. Railway Co., 193 S.W. (Mo. App.) 958; Dunn v. Railroad, 192 Mo.App. 260; Ridenour v. Harvester Co., 205 S.W. (Mo. App.) 883; Boehm v. General Electric Co., 179 Mo.App. 663; Loehrig v. Construction Co., 118 Mo.App. 163; Tinkle v. Railroad, 212 Mo. 445; Northern v. Fisheries Co., 8 S.W.2d 982. (3) It was the duty of defendant to exercise ordinary care to keep its premises where plaintiff was required to work, or over which plaintiff might have occasion to pass in the performance of his duties as a switch tender in the yards in question, free from dangerous obstructions constituting a menace to plaintiff's safety while performing such duties in the nighttime, and the evidence adduced made out a clear case of liability on the part of defendant for a negligent breach of that duty. Yazoo & M. V. Railroad Co. v. Dees, 121 Miss. 439; Norfolk & W. Ry. Co. v. Whitehurst, 125 Va. 260; Southern Ry. Co. v. Newton's Admr., 108 Va. 114; Vickery v. Railroad Co., 87 Conn. 634; Vordermark v. Lumber Co., 12 S.W.2d 498; Jablonowski v. Cap Mfg. Co., 312 Mo. 173; Cross v. Railroad Co., 191 Mo.App. 202; Holloway v. Railway Co., 276 Mo. 490; Chicago & Erie R. Co. v. Dinius,, 180 Ind. 596. Under the circumstances, the violation by defendant of the uniform custom to keep such lights burning was a violation of a duty owing by defendant to plaintiff. Yazoo, etc., Railroad Co. v. Dees, supra; Norfolk & W. Railroad Co. v. Whitehurst, supra; Halt v. Ry. Co., 279 S.W. 148. (4) The duty owing by defendant to plaintiff with respect to keeping its dwarf signal in these yards lighted in the nighttime was not restricted to seeing that such signal was kept in operating condition for the performance of its function in signaling the operators of trains or engines, but, as an unlighted signal in the nighttime, contrary to the uniform custom, would constitute a dangerous obstruction and menace to plaintiff in the performance of his duties under the circumstances, defendant was charged with the duty of exercising due care to keep such signal light burning at night so that plaintiff and other employees in the yards would not be misled by the absence of a light therein and thereby be caused to run into or stumble over such unlighted signal. Yazoo & M. V. Railroad Co. v. Dees, 121 Miss. 439; Norfolk & W. Ry. Co. v. Whitehurst, 125 Va. 260; Vickery v. Railroad Co., 87 Conn. 634. (5) There was no error in giving plaintiff's Instruction 1. (a) There was ample evidence that the dwarf signal over which plaintiff stumbled was not only unlighted and had been unlighted for so long that it was cold, but that it had been allowed to become and for a long time had been defective, in that a bolt in one side of the bracket mentioned in the evidence was loose, so that the signal would tilt and cause the light to go out, and that defendant had full knowledge thereof in ample time to have repaired the same. (b) Where the existence of a certain condition of a continuous nature is shown the presumption arises that such condition continues to exist until proved to the contrary. Proof that the bolt was loose in the lamp bracket when report thereof was made to defendant two or three weeks or more prior to plaintiff's injury, and that such defect would cause the lamp to tilt and go out, and that the same defective condition existed at the time of the casualty sufficed in the absence of countervailing proof to warrant the finding that the lamp had remained in this condition during the intervening time. Dean v. Railroad, 199 Mo. 386, 401; Cape Girardeau v. Hunze, 314 Mo. 463; Gray v. Light & Power Co., 282 S.W. 493; King v. Railroad Co., 263 S.W. 828; McDaniels v. Cutburth, 270 S.W. 353; Taylor v. St. Ry. Co., 183 S.W. 1129; Dehner v. Miller, 166 Mo.App. 504, 515; Phillips v. Pryor, 190 S.W. 1027; MacRae v. Fibre Mills, 130 N.Y.S. 339, 145 A.D. 588; Carlson v. New York, 134 N.Y.S. 661, 150 A.D. 264; Herschkowitz v. Ins. Co., 157 N.Y.S. 436, 93 Misc. 522. (c) There was ample proof of notice to defendant of the defective condition of the signal two or three weeks or more prior to the casualty. Since the testimony for both plaintiff and defendant shows that the employees of the Indianapolis Union Railway Company, in the usual and regular course of their duties as operators in these yards, made report to defendant's train dispatcher when the signal was found defective, the presumption is that such was their duty, and that this was the course of procedure adopted for imparting such notice to defendant, and that was effective for that purpose. McCallister v. Ross, 155 Mo. 87; Chlanda v. Transit Co., 213 Mo. 244; Hartwell v. Parks, 240 Mo. 537; Brigham City Fruit Growers Assn. v. Produce Co., 220 S.W. 916; 22 C. J. 103-107, sec. 46. (d) The court will take judicial notice that the train dispatcher of a railroad is the field officer having charge of the...