Carnahan v. Missouri-Kansas-Texas R. Co.

• Decision Date: 18 December 1935
• Docket Number: 33011
• Parties: E. E. Carnahan v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

88 S.W.2d 1027

338 Mo. 23

E. E. Carnahan v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 33011

Supreme Court of Missouri

December 18, 1935

Rehearing Denied December 18, 1935.

Appeal from Cooper Circuit Court; Hon. Nike G. Sevier Judge.

Reversed.

Carl S. Hoffman, W. H. Martin and Montgomery, Martin & Montgomery for appellant.

(1) A loose piece of board upon a brake platform, making the use of the platform dangerous, does not render the brake apparatus of the car defective within the meaning of the safety appliance act. 45 U.S.C. A., sec. 11; Riley v. Ry Co., 328 Mo. 910, 44 S.W.2d 136; Ford v. Railroad Co., 54 F.2d 342; Slater v. Ry. Co., 178 N.W. 813; Reeves v. Ry. Co., 179 N.W. 789; Odea v. Byram, 222 N.W. 519. (2) The defendant is not an insurer for the safety of its employees and the mere fact that plaintiff was injured while in the discharge of his duties as the result of a dangerous obstruction upon a brake platform which caused him to fall therefrom when he stepped upon it, would not of itself raise any inference of negligence. The duty of a master is only to use reasonable care in keeping and maintaining the servant's place of work in a reasonably safe condition and the master is not liable for injuries caused by a defect in the place of work, unless it had actual or constructive notice of the defect in time to have remedied same before the accident. Constructive notice of a defect rendering the employee's place of work unsafe may only be imputed to the master where the evidence shows that such defect was of such character and had existed for so long a time that the master, in the exercise of ordinary care, could have discovered it. Bello v. Stuever, 44 S.W.2d 619; Burns v. Railroad Co., 129 Mo. 41, 31 S.W. 347; Haggard v. McGrew Coal Co., 200 S.W. 1072; Manche v. St. Louis Basket Co., 262 S.W. 1021; Winslow v. Ry. Co., 192 S.W. 121; Wilson v. Railroad Co., 5 S.W.2d 19; Phipps v. Prior, 195 S.W. 532; Ronchetto v. Northern Central Coal Co., 179 Mo.App. 215, 166 S.W. 876. (3) It is not sufficient for the plaintiff to merely prove some act of negligence on the part of defendant. The burden is upon the plaintiff to go further and to show that the negligence complained of was a direct and proximate cause of his injuries; that is, that absent such negligence his injuries would not have occurred. A. T. & S. F. Ry. Co. v. Toops, 281 U.S. 351; Northwestern Pac. Railroad Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462; Owens v. Ry. Co., 33 F.2d 870; Courter v. Chase & Son Merc. Co., 266 S.W. 340; Carpenter v. Ry. Co., 71 S.W.2d 1071; A. T. & S. F. Ry. Co. v. Saxon, 284 U.S. 458. (a) As a corollary to the foregoing rule, it has been specifically held that a showing of negligence on the part of a defendant master in failing to inspect plaintiff's working place, imposes no liability upon the master for injuries resulting from a defect therein, unless it be affirmatively shown that such defect would have been discovered had a proper inspection been made. Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 704; Schneider v. Pevely Dairy Co., 328 Mo. 301, 40 S.W.2d 647; Rowden v. Daniell, 151 Mo.App. 15, 132 S.W. 23; Bello v. Stuever, 44 S.W.2d 619. (4) It is the well-settled rule that an inference of fact may not be based upon another inference of fact. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved by direct evidence and not themselves presumed. United States v. Ross, 92 U.S. 284; Manning v. Ins. Co., 100 U.S. 697; Smith v. Railroad Co., 239 F. 193; Sexton v. Met. St. Ry. Co., 245 Mo. 275, 149 S.W. 21; Boggess v. K. C. Rys. Co., 207 Mo.App. 1, 229 S.W. 404.

O. S. Hill and Cowgill & Popham for respondent.

The failure of defendant to properly inspect the car in question and to discover and remove the piece of grain door on the brake platform, admittedly the cause of plaintiff's fall and injury, was established by facts and circumstances and legitimate inferences, clearly presenting a submissible issue for the jury. Cole v. Ry. Co., 61 S.W.2d 346; Baker v. Railroad Co., 327 Mo. 986, 39 S.W.2d 543; Burtch v. Ry. Co., 236 S.W. 343; Farber v. Ins. Co., 215 Mo.App. 571, 256 S.W. 1079; Soeder v. Railroad Co., 100 Mo.App. 673, 13 S.W. 714; Youngue v. Railroad Co., 133 Mo.App. 141; Wack v. Railroad Co., 175 Mo.App. 121, 157 S.W. 1070; Settle v. Ry. Co., 127 Mo.App. 341; Hardwick v. Railroad Co., 181 Mo.App. 156; Laughlin v. Railroad Co., 205 S.W. 5; Genta v. Ross, 37 S.W.2d 969; Erie Railroad Co. v. Schomer, 171 F. 803; Felton v. Bullard, 94 F. 787; Perkins v. Railroad Co., 199 F. 719; Stubbs v. Rochester, 226 N.Y. 516, 124 N.E. 137, 5 A. L. R. 1401; Chocktaw v. McDade, 191 U.S. 64, 48 L.Ed. 96; Wabash Screen Door v. Black, 126 F. 725; Winters v. Railroad Co., 177 F. 54; Federal Mining & Smelting Co. v. Anderson, 253 F. 362; Myers v. Pittsburgh Coal Co., 233 U.S. 193, 158 L.Ed. 911; Wigmore on Evidence, art. 41; 1 Jones on Evidence, p. 39; Pinshaw v. State, 147 Ind. 334, 47 N.E. 158.

OPINION

Gantt, P. J.

Action under the Federal Employers' Liability Act. Plaintiff was injured while serving defendant as switchman in its yard at Rosedale, Kansas. It was his duty to set the brake on cars switched to different tracks. In the performance of said duty he fell from the brake platform attached to the end of a car and was injured. Judgment for $ 20,000.

The petition charged that defendant negligently failed to inspect the brake platform and that as a direct result of said negligence, plaintiff was injured. The case was submitted to the jury on this charge of negligence. Defendant contends that its instruction, in the nature of a demurrer, should have been given at the close of the evidence. There was evidence tending to show the following:

The yard at Rosedale is a "good sized" railroad yard, with two night watchmen on duty. A large grain elevator is serviced by four of defendant's tracks extending north and south in said yard. The elevator is between Clinton and Mill streets, which streets intersect said tracks. The yard is not fenced, and the streets are main traveled thoroughfares of the city. Tracks one and two extend along the east side of the elevator, and cars on said tracks are loaded from the elevator. Tracks three and four extend along the west side of the elevator, and cars loaded with grain are "spotted" on said tracks south of the elevator, usually in the nighttime. In the morning the grain company moves the loaded cars northward to unloading pits under said tracks and adjacent to the elevator. The cars are unloaded into the pits and then moved northward. The pits are covered by a shed of sufficient height to clear a switchman standing on top of a car. The unloaded cars remain on said track until removed by a switching crew. Cars loaded with grain are received daily at the elevator.

In the shipment of grain, inside doors are used to prevent leakage from the car. They are placed across the inside of the doorways and nailed with eight penny nails to the posts on the sides of the doorways. They are made of two cheap pine boards twelve inches wide and fastened together with eighteen-inch cross boards. They use sufficient grain doors in a doorway to prevent leakage. In unloading a car the grain company forces claws or hooks under the grain door. On account of the grain in the car, the nails fastening the grain doors to doorway posts cannot be removed. The claws or hooks are attached to a cable which passes over a drum located above the car. Upon application of the power the grain door is either forced upward and onto the grain within the car, or the boards of which the grain door is made are broken. If broken, pieces of the boards are thrown in every direction. A piece of board may be thrown upward and against the roof of the shed, falling therefrom to the roof of the car. The unbroken grain doors are again used in cars. On the day in question and at ten forty-five P. M. a switch engine was coupled to ten empty cars on said elevator track. The engine and cars were then moved north and onto the lead track to be switched to different tracks in the yard. In an effort to set the brakes on moving cars switched to a certain track, plaintiff ascended a ladder on the end of one of the cars and stepped to the brake platform attached to the end of the car. In doing so he stepped on a piece of board on the platform which slipped and caused him to fall to the track and between the moving cars. It was a pine board eighteen inches long, tapering from one and one-half inches at one end to one inch at the other end. It was a part of a crosspiece which had been nailed to and held together the parts of a grain door.

At eight A. M. on the day plaintiff was injured and before the cars were unloaded at the elevator, an inspection of the car from which plaintiff fell, including the brake platform, was made by defendant's car inspector. At that time said board was not on the brake platform. If it had been on said platform it would have been the duty of the inspector to remove it. After the cars, including the car in question, were unloaded, and at three P. M. on that day, the inspector made a "commodity inspection" of the inside of the roof and the door posts, floor and sills of said car. He made no inspection of the brake platform of this or other cars after they had been unloaded.

Plaintiff tried and submitted his case to the jury on the theory that it was the custom of defendant to generally inspect cars after they had been unloaded by the grain company. There was evidence tending to sustain this theory of the plaintiff. On the contrary there was evidence tending to show that after the cars were unloaded it was the custom of defendant to make only an interior inspection. The jury...