Chambers v. Hines

• Decision Date: 02 May 1921
• Docket Number: No. 13900.,13900.
• Parties: CHAMBERS v. HENES, Direator General of Railroads.
• Court: Missouri Court of Appeals

233 S.W. 949

208 Mo. App. 222

CHAMBERS v. HENES, Direator General of Railroads.

No. 13900.

Kansas City Court of Appeals. Missouri.

May 2, 1921.

Rehearing Denied June 13, 1921.

Certiorari to Supreme Court denied July 22, 1921.

Appeal from Circuit Court, Jackson. County; Daniel E. Bird, judge.

Action by David Chambers against Walker D. Hines, Director General of Railroads, in charge of the Chicago Great Western Railroad Company. John Barton Payne, as Director General of Railroads, was substituted as defendant. Judgment for plaintiff, and the defendant appeals. Affirmed on condition of remittitur.

Warner, Dean, McLeod & Langworthy, of Kansas City, for appellant.

Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent

ARNOLD, J.

This is a personal injury suit prosecuted by a servant against his master on the ground that the injury was caused by negligence of the master. Suit was brought against Walker D. Hines, Director General of Railroads, and Chicago Great Western Railroad Company, but the action later was dismissed as to the railroad company, and afterwards John Barton Payne, as Director General of Railroads and Agent of the President under the 1920 Transportation Act (Act Cong. Feb. 28, 1920, c. 91, 41 Stat. 456), was substituted for said Hines, Director General.

Plaintiff, colored and 59 years of age, was employed as a fire builder in defendant's roundhouse in Kansas City, Mo., and on January 3, 1919, at about 6:10 o'clock p. m., he fell into a pit in the roundhouse while on his way from the dressing room to the office to check out, and sustained injuries thereby which he alleges completely and permanently destroyed his earning capacity.

The petition charges that defendant negligently mantained a passageway for use of employes alongside an unguarded engine pit; that said passageway was of insufficient width, and insufficiently lighted, so that it was dangerous and not a reasonably safe place in which to work. The answer was a general denial, and also charged plaintiff with contributory negligence in the use of the passageway and pleaded assumption of risk.

The roundhouse in which the accident occurred was fanshaped in its general contour and large enough to accommodate eight tracks inside the roundhouse, said tracks being numbered from 1 to 8, inclusive, counting from the east side thereof. The turntable was on the north and outside the roundhouse. The width of the roundhouse structure from north to south was about 80 feet. The engines entered from the turntable at the north through large, double swinging doors at each track. Beneath each track in the round house, beginning about 8 feet from the north doors, was an excavation or pit about 68 feet long and 4 feet deep. On the west side of the roundhouse and adjacent thereto were two washrooms and locker rooms, the north one for white men and the south for colored men employed at the roundhouse. The colored men were not allowed to use or be in the washroom reserved for white men, nor to pass through it, nor to be or remain therein. The office where the men were required to check in and out was northeast of, and detached from, the roundhouse.

Defendant maintained a passageway between track 8 and the west wall of the roundhouse, which passageway had a board floor for the use of employes in passing back and forth. This passageway, due to the fanlike shape of the structure, was about 7 feet in width at the south end, tapering to 4 feet at the north end, where it connected with a small door cut out of the westerly side of the west one of the two large doors at the north end of track 8, which said small door was provided for the use of employes in passing in and out of the roundhouse.

The testimony tends to show that at the time of the accident there was piled along the west side of the passageway above described and near the north or narrower end thereof some timbers that had been used in the process of repairing an engine on track 8, thus reducing the width of the passageway at that point to about 2½ feet. Plaintiff states the passageway was dark, obscure, dimly and insufficiently lighted. Further the testimony tends to show that the only artificial lights in the roundhouse were a series of oil lamps attached to the south wall, one at the end of each track, about 6 feet above the floor, and that there were no lights in the north side of the building; that plaintiff quit work and went to the dressing room shortly before the accident to lock up his tools preparatory to checking out; that while he was in the dressing room an engine was run in on track 8, the south end of it being within 2 or 3 feet of the south end of the pit, thus leaving that part of the pit north of the engine unlighted and open for a space of 15 to 18 feet. The engine obstructed the light that was on the wall at the south end of the pit. The testimony further shows that while the plaintiff was in the dressing room an engine in the roundhouse was "blown down"—that is, the steam was blown off—and that the steam therefrom filled the room and further obscured the lights.

At about 6:10 p. m. plaintiff emerged from the dressing room into the passageway and proceeded toward the small door at the north end thereof, as was his custom, and when near the north end, owing to the insufficient light and narrowed passageway, he fell into the pit and was injured.

The case was tried before a jury and resulted in a verdict for plaintiff in the sum of $10,000. Motions for a new trial and in arrest were overruled, a remittitur of $2,500 was made by plaintiff, and judgment for $7,560 entered for plaintiff. Defendant appealed.

Defendant complains that the court erred in permitting plaintiff to amend his petition during the progress of the trial. The amendment related solely to the amount of wages lost by plaintiff up to the time of the trial. There was no amendment as to any of the allegations of negligence of the defendant and the issues were not changed.

"The allowing of such amendments to pleadings as do not change the character of the cause of action or defense is largely in the discretion of the court and should be permitted when the ends of justice so require." McClanahan v. Boggess, 154 Mo. App. 600, 136 S. W. 237.

Section 1274, Rev. Stat. 1919 (section 1848, R. S. 1909), provides:

"The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return or other proceedings, by adding or striking out the name of any party, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved."

It must be concluded that the court did not err, in overruling defendant's objection to the amendment.

Defendant contends that the court erred in admitting incompetent, irrelevant, and immaterial testimony: (a) As to the presence of steam in the roundhouse where plaintiff was injured; (b) obstructions in plaintiff's path; (c) faulty construction of the roundhouse.

The charges of negligence in the petition are:

"That the defendants and each of them negligently and carelessly failed and omitted to illuminate and light or have illuminated said engine house and the premises and said plank walk and said wells or pits, and that, by reason of the darkness and murkiness and the conditions herein complained of existing at said time and place, it was dangerous and not reasonably safe, and that defendants and each of them negligently and carelessly failed and omitted to furnish plaintiff a reasonably safe place to work, or reasonably necessary and sufficient light by which to work and perform his duties with reasonable safety, and negligently and carelessly failed and omitted to place about and around said wells or pits any guard rail, and negligently failed to maintain and keep said plank walk lighted or in repair, smooth, or even of reasonably sufficient width, and to furnish plaintiff a reasonably safe place in, about, and around which to be, walk, and perform his duties to defendants with reasonable safety, but negligently permitted said premises and said conditions to be as herein described and set forth; and the plaintiff alleges that the above conditions were to him unknown and unappreciated prior to said occurrence, but that the defendants, and each of them knew, or by the exercise of ordinary care could have known, all the above facts, dangers, and conditions, prior to his injury, and in time by the exercise of ordinary care to have remedied said dangers and conditions and thereby have prevented injury to plaintiff, all of which it was defendant...