Cade v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 08 March 1954
• Docket Number: No. 42902,42902
• Citation: 364 Mo. 620,265 S.W.2d 366
• Court: Missouri Supreme Court
• Parties: CADE v. ATCHISON, T. & S. F. RY. CO.

Page 366

265 S.W.2d 366

364 Mo. 620

CADE v.ATCHISON, T. & S. F. RY. CO.

No. 42902.

Supreme Court of Missouri, En Banc.

March 8, 1954.

John H. Lathrop, Sam D. Parker, Kansas City, Richmond C. Coburn, Thomas L. Croft, St. Louis, for appellant.

Francis H. Monek, Chicago, Ill., Claude W. McElwee, St. Louis, for respondent, Henslee, Monek & Murray and Melvin L. Griffith, Chicago, Ill., of counsel.

HYDE, Judge.

Action for damages for personal injuries under the Federal Employers' Liability Act. 45 U.S.C.A. Secs. 51-60.Verdict and judgment for plaintiff for $126,000 reduced by remittitur of $51,000 to $75,000; and defendant has appealed.Defendant contends it was entitled to a directed verdict and also alleges error in instructions, admission of evidence, and failure to grant a mistrial because of misconduct of plaintiff's counsel.

Plaintiff was acting as foreman of a switching crew at Wellington, Kansas, when injured by falling over the drain box, or catch basin of a sewer, which projected about 6 inches above the ground.Plaintiff was in charge of a switching movement about 11:00 p. m. which had brought a cut of 12 or 14 cars from a mill.Some of these were loaded cars to be sent out and others empty cars to be placed on the mill tracks in accordance with the switch list given to plaintiff by the yardmaster.Defendant's main line ran east and west through Wellington, a city of about 10,000 population.Where plaintiff was working there were three tracks and the cars, being switched, were on the third or south track with the engine on the east end pulling them east.The main street of Wellington was Washington Street, over which U. S. Highway 81(a Cuif of Mexico to Canada Highway) was routed; and it carried considerable traffic.The next street west was Jefferson Street, which also had much traffic, being often used by trucks to miss the main street traffic.Defendant's station was between these two streets on the north side of the main line track.These two streets were about 280 feet apart.Plaintiff's cut of cars blocked Jefferson Street and the engine partially blocked Washington Street.The track to the mill curved off to the southwest with the switch about 36 feet south of Jefferson Street.

Plaintiff stayed by this switch and opperated it.There were four other men in the crew.The engineer and fireman stayed in the engine.The pin puller or head brakeman worked near the front of the train and cut off cars as plaintiff directed.The field man, or rear brakeman, rode the cars that were kicked off and stopped them by use of the hand brake.This was the usual switching crew and the number provided for in the contract between defendant and the union representing yardmen.There was a considerable grade downhill to the southwest on the mill switch track, so that it was necessary to use the hand brakes on any cars detached to keep them from rolling to the southwest.The three switchmen worked on the south side of the track because the engineer was on that side and could see their signals when given from that side.The pin puller also protected Washington Street when it was blocked and plaintiff protected Jefferson Street to keep northbound traffic from running into the cars.There was no one to protect on the north side against southbound traffic.There were three other street crossings between the switch and the mill, but there was no evidence to show conditions or amount of traffic on them.

There were no warning lights, bells or signaling devices at either street to warn of the presence or approach of cars on the tracks.A watchman was stationed at Washington Street from 6:00 a. m. to 10:00 p. m., but there was none at Jefferson Street at any time.Plaintiff's evidence showed that traffic from the south on Jefferson Street approached the crossing on a downgrade; that, from 200 to 250 feet south of the crossing, a motor vehicle driver could see over the tops of the cars and the lights of the business district beyond; and that, because of these conditions, northbound drivers on Jefferson Street would not see cars, blocking the crossing, until 'right on them.'Defendant had built an underground sewer south of the tracks to take care of the surface water, keeping it off the tracks; and in the curb, about ten feet south of the south track, on each side of Jefferson Street, it had built large concrete drain boxes, or catch basins, to take the water from the street into the sewer.Plaintiff's evidence was that the drain box on the west side, nearest the switch where plaintiff was working, was 4 feet 3 inches long, 2 feet wide, and 16 3/4 inches high (above the street) and extended 6 3/4 inches above the top of the curb and 6 inches above the ground on the west.It was also shown that it was necessary for the switchmen to work in this area and farther to the south to give signals the could be seen by the engineer.There were no lights of any kind there or nearby and it was very dark the night plaintiff was injured.

While plaintiff was at the switch, directing an uncoupling, he told the field man to get up on a car and set the brake.The field man, going up the side of the car, saw an automobile coming north on Jefferson Street at a high rate of speed and called to plaintiff to look out for the automobile.Plaintiff thought the driver did not see the cars and ran as fast as he could toward the street trying to attract the driver's attention with his lantern.In doing so, he tripped over the top of the drain box, fell into the street and was injured.

Plaintiff's petition contained nine separate specific charges of negligence, but those concerning negligent construction, maintenance, inspection, unsafe method of work and failure to warn, were abandoned (so far as this appeal is concerned) by not being submitted.Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91;Smith v. St. Louis Public Service Co., Mo.Sup., 259 S.W.2d 692.The grounds submitted were failure to have a light to reveal the projecting drain box, failure to provide any signaling device at the Jefferson Street crossing, and failure to provide a sufficient number of employees in the switching crew so that an employee could be stationed as a watchman at the crossing.While as hereinafter shown, these were seemingly submitted as separate specific grounds of recovery, they could have all entered into the consideration of the safety of plaintiff's place of work.Certainly, failure to light the place so as to reveal the obstruction in the area where plaintiff, and the others, had to work was sufficient to make a jury issue of failure to furnish plaintiff a safe place to work under the conditions shown by the evidence.Therefore, from the facts submitted, we construe plaintiff's instruction 2 as submitting that issue, which was one of the grounds pleaded and was stated as the duty of defendant in instruction No. 1.Rights created by the Federal Employers' Liability Act'are federal rights protected by federal rather than local rules of law' but 'those federal rules have been largely fashioned from the common law'; and 'At common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain.'Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 1063, 87 L.Ed. 1444.As further stated in the Bailey case concerning the duty to furnish a safe place to work: 'That rule is deeply engrained in federal jurisprudence' and this duty 'is a duty which becomes 'more imperative' as the risk increases'; and is 'a 'continuing one' from which the carrier is not relieved by the fact that the employee's work at the place in question is fleeting or infrequent.'

Defendant's contention as to this matter is that failure to have a light was not the proximate cause of plaintiff's fall because plaintiff was carrying an electric lantern which normally would have revealed the drain box.Defendant argues it was the approach of the automobile that caused plaintiff to fail to see the drain box and that this would have been true even if the area had been lighted.Defendant also argues that this result could not have been anticipated and that the reckless approach of the driver of the automobile was an intervening direct and proximate cause...