Cleghorn v. Terminal R. Ass'n of St. Louis

• Decision Date: 12 March 1956
• Docket Number: No. 1,No. 45020,45020,1
• Citation: 289 S.W.2d 13
• Parties: Samuel M. CLEGHORN (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST LOUIS, a Corporation (Defendant), Appellant
• Court: Missouri Supreme Court

Page 13

289 S.W.2d 13

Samuel M. CLEGHORN (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST LOUIS, a Corporation (Defendant), Appellant.

No. 45020.

Supreme Court of Missouri, Division No. 1.

March 12, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 9, 1956.

Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.

Haley, Fredrickson & Caruthers, Rexford H. Caruthers, St. Louis, for respondent.

VAN OSDOL, Commissioner.

In this action brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., plaintiff Samuel M. Cleghorn had verdict and judgment against defendant Terminal Railroad Association of St. Louis for $11,885 for personal injuries sustained when he tripped and fell on a switchstand in defendant's Bremen Yard in St. Louis. Defendant has appealed.

Plaintiff's case was submitted to the jury on negligence of defendant in failing to furnish plaintiff with a reasonably safe place to work. The primary contentions of defendant-appellant are that plaintiff failed to make out a case of actionable negligence; and that the evidence did not support the hypothesis in an instruction submitting the issue of whether or not plaintiff was bound by a release. There are further contentions that defendant was deprived of a fair trial by the action of the trial court in denying defendant's challenges to sixteen veniremen; that the court erred in permitting plaintiff to testify of a practice of switchmen to carry their lanterns in a particular manner; and that plaintiff's counsel, in his argument, was erroneously permitted to attack the credibility of plaintiff's own witnesses. It is also contended by defendant-appellant that the amount of the verdict was excessive.

Plaintiff, forty years old when injured April 18, 1953, had been in defendant's employ as a switchman since 1940. Plaintiff reported for work at four o'clock in the afternoon, and took over his duties as a 'hind' man of a switch crew working in defendant's Bremen Yard.

The principal tracks in the Bremen Yard are the Big Lead and the Big Foot lying in a general north-south direction. The Big Lead is east of the Big Foot. Various switch tracks connect with these tracks. The Big Lead is a main-line track. The Big Foot is a 'pull-in' track--it is used for temporarily storing cars which are to be assembled into trains. The switchstand on which plaintiff fell controls the movement of cars in and out of switch tracks Nos. 9 and 10 in their junctures with the Big Lead. The switchstand is located between the Big Lead and the Big Foot, and is some two hundred twenty-five feet north of Bremen Avenue which crosses defendant's tracks in an east-west direction.

Plaintiff was injured at eight forty-five in the evening. It was then very dark. The switchstand was painted black. It had dirt and grease on it. The visibility was poor in the area. No target lights were on the bracket at the top of the switchstand, nor were there other lights in the area. The illumination cast by lights on Bremen Avenue and by lights on buildings situate near Bremen Avenue did not illuminate the area.

Just prior to the time plaintiff was injured, a train was being made up on the Big Foot, and fourteen cars had been set temporarily on that track. The south end of the southernmost car was near the switchstand. The switch engine had moved southwardly on the Big Foot across Bremen Avenue, thence northwardly again to pick up three cars and a caboose on a switch east of the Big Lead in anticipation of coupling these cars and the caboose to the south end of the cars standing on the Big Foot. Plaintiff assisted in coupling the switch engine to the three cars and caboose, then walked southwestwardly and stood between the Big Lead and Big Foot tracks near the south end of the cars temporarily set on the Big Foot. He stood facing west, near and north or northwest of the switchstand. Meanwhile, the switch engine with the three cars and caboose had moved southwardly across Bremen Avenue and then over onto the Big Foot, thence northwardly until a coupling was made with the string of cars on the Big Foot. After the coupling was made, it was plaintiff's duty to move eastwardly across the Big Lead and other switch tracks to the eastward thereof, and there await the switch engine's return over onto the Walter's Lead.

The coupling having been made, plaintiff held up his lantern in a 'cut-off' signal pivoted to the eastward on his left foot, and started to stride with his right. His right foot 'caught in the switch assembly, either the switch handle or the side, and I fell. I felt a terrific pain. * * * in my shin bone, in my (right) knee and my knee cap.' He fell on top of the switchstand, struck his knee on the bracket 'that would have held the target, and jammed my hand into the ground as I fell down.'

Plaintiff testified that he was using an electric lantern with a rigidly adjusted bail. The lantern had two light bulbs at the bottom; one of the bulbs was 'on.' The lantern is used for passing signals. It is the practice for the lantern to be held 'still' when not passing signals. 'To move that lamp could be misinterpreted as a signal.' Plaintiff had often worked in this yard and knew there was a switchstand and mechanism controlling the movements on and off tracks Nos. 9 and 10. He knows he could have seen the switchstand if he had used his lantern in looking for it.

Plaintiff had the burden of proving that defendant was negligent, and that such negligence was a proximate cause of plaintiff's injury. At common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain, and the failure to use such care is negligence. Tatum v. Gulf, M. & O. R. Co., 359 Mo. 709, 223 S.W.2d 418; Malone v. Gardner, 362 Mo. 569, 242 S.W.2d 516; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. Due care contemplates the precautions commensurate with the dangers to be encountered in the circumstances or, as has been said by the Supreme Court of the United States in cases involving employers' requisite care in furnishing a safe place to work, "in all cases it is a question of the reasonableness of the care, reasonableness depending upon the danger attending the place or the machinery." Bailey v. Central Vermont Ry., supra.

The Big Foot track was utilized for making up trains necessitating the coupling of cars thereon, and plaintiff, the hind man of the switching crew, had the duty to make the coupling of the three cars and caboose onto the train being made up on the Big Foot. This work brought him to the immediate vicinity of the switchstand. Having coupled the cars, plaintiff, in moving to perform other duties, turned eastwardly and started to walk to some easterly part of the Bremen Yard. The circumstances that the switchstand was situate in an area furnished by defendant to plaintiff as a place of work; that the switchstand and the mechanism were unlighted, dark in color, and no lights of any kind cast illumination into the area at the time; that by reason of these circumstances plaintiff's place of work was dangerous and not reasonably safe; and that, in so furnishing plaintiff with a place of work in such condition, defendant was negligent, were submitted to the jury in plaintiff's verdict-directing Instruction No. II. We believe that under the evidence it was a question for the jury whether a reasonably prudent employer would have taken the precaution to illuminate or mark the switchstand in some manner for the protection of employees engaged in switching movements in its vicinity in the nighttime. Luthy v. Terminal R. Ass'n of St. Louis, Mo.Sup., 243 S.W.2d 332.

Defendant's counsel is of the opinion that plaintiff in the Luthy case failed to make out a case for the jury and that the opinion of this court in that case should not be followed. We have carefully examined the Luthy opinion, and we believe the case was rightly decided. We regard that case as an authority supporting the submissibility of the issue of defendant's negligence in this case. It is true, as argued by defendant-appellant herein, there was testimony in the Luthy case that the switching mechanism over which plaintiff Luthy fell could have been painted with luminous paint, and there was no evidence in the instant case tending to show any practicable method of illuminating the switchstand and mechanism, nor was there evidence that it was customary for railroads generally to illuminate switchstands. It is also true that plaintiff Luthy, when he tripped over the switching mechanism, was running to catch and board a moving train, and, in our case, plaintiff Cleghorn merely, turned and took a stride with the intention of walking to another place in defendant's yard. The exercise of due care, however, requires precautions which a reasonably prudent employer would have taken in given circumstances, even though other employers may not have taken such commensurate precautions. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. Grosvener v. New York Cent. R. Co., 343 Mo. 611, 123 S.W.2d 173. And we are of the opinion that it does not take the testimony of an expert witness or of any witness, Derrington v. Southern R. Co., 328 Mo. 283, 40 S.W.2d 1069, to advise a jury of a fact they already know as a matter of common knowledge, that is, we believe it is a matter of common knowledge that there are practicable methods of marking or illuminating a switchstand, and that in given circumstances the employer has a duty to do so, if in the circumstances a reasonably prudent employer would have taken such a precautionary measure to protect his employee from harm. On the issue of submissibility of plaintiff's case, we think the fact that plaintiff was walking and that plaintiff Luthy was running...