Cole v. St. Louis-San Francisco Ry. Co.

• Decision Date: 10 June 1933
• Docket Number: No. 30467.,30467.
• Citation: 61 S.W.2d 344
• Parties: WILLIAM G. COLE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.
• Court: Missouri Supreme Court

61 S.W.2d 344

WILLIAM G. COLE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.

No. 30467.

Supreme Court of Missouri, Court en Banc.

June 10, 1933.

Appeal from Jasper Circuit Court. — Hon. R.H. Davis, Judge.

AFFIRMED AND REMANDED (with directions).

Norman & Norman for appellant.

(1) The court granted defendant a new trial in this case on the sole ground that he should have sustained defendant's demurrer to all the evidence at the close of the entire case. (a) "In passing on demurrer to evidence, plaintiff must be allowed every favorable inference of fact to be drawn from his testimony." Baker v. Railroad Co., 39 S.W. (2d) 535. "In considering defendant's demurrer to the evidence, every reasonable inference should be indulged in plaintiff's favor." State ex rel. v. Haid, 28 S.W. (2d) 97. "On defendant's demurrer to evidence, inference unfavorable to plaintiff should not be drawn if others more favorable can be drawn with equal propriety." State ex rel. v. Haid, supra. "Where court heard no evidence except plaintiff's it and all reasonable inferences and deductions therefrom are taken as true on demurrer to evidence." Coble v. Railroad Co., 38 S.W. (2d) 1031. (b) There was no error in the trial of this case prejudicial to the defendant; the only errors committed by the court were errors prejudicial to the plaintiff, yet plaintiff substantially proved the essential averments of his petition and there is no error in the record about which the defendant can complain, and the cause should be reversed and remanded. "Where there is no error in a trial, wherein a case is submitted to the jury, an order granting a new trial will be reversed on appeal, where it cannot be said as a matter of law that the verdict of the jury was not sustained by the evidence." Berkshire v. Holcker, 216 S.W. 556. "Granting a new trial for overruling a demurrer to the evidence is erroneous where plaintiff substantially proves essential averments." Mooney v. Monark G. & O. Co., 298 S.W. 69. "It is error to grant a new trial where the evidence is sufficient to warrant a finding for plaintiff." Schaefer Const. Co. v. Jones, 3 S.W. (2d) 286. (2) Since this action is brought under the Federal Employers' Liability Act and the Safety Appliance Act, the decisions of the Supreme Court of the United States, in determining defendant's negligence and the sufficiency of plaintiff's proof, should and must control. McAdow v. Ry. Co., 192 Mo. App. 540, affirmed 240 U.S. 51; Hamilton v. Railway Co., 300 S.W. 787. (3) The sill-step from which plaintiff fell in this case being covered with oil or grease, if any other employee of defendant was responsible for the grease being there, the defendant is liable, or if any of its employees whose duty it was to inspect the places of work to ascertain the safety of such places, failed to make such inspection or did not make a proper inspection, defendant is liable. Under the Federal Employers' Liability Act, the action lies for "injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carriers." Railroad Co. v. Kerse, 229 U.S. 576. (a) The object of the act was to abrogate the fellow-servant rule in case of injuries to employees, and the negligence of the "officers, agents or employees" is the negligence of the defendant common carrier. Railroad Co. v. Young, 200 Fed. 359; Chesapeake, etc., Railroad Co. v. DeAtley, 241 U.S. 310. (4) The sill-step being a place where defendant's employees would necessarily have to go in performing their duties, and it being necessary to use these steps when the train was in motion — an act necessarily fraught with dangers under the best conditions — furnishing employee with a sill-step covered with oil or grease that he would have to step on while catching a car traveling six or eight miles per hour, certainly did not comply with defendant's legal duty to furnish plaintiff a reasonably safe place to work. Under the above section it is actionable negligence for the employer to fail to furnish the employee a reasonably safe place in which to work, if the employee receives an injury resulting in whole or in part from such negligence. Atlantic Coast Line v. Davis, 279 U.S. 210; Mo. Valley B. & I. Co. v. Walquist, 243 Fed. 120. Employer's duty to furnish employee safe working place is continuing and nondelegable. Reynolds v. Amusement Co., 300 S.W. 1062. Cases illustrative of the above principle, and as nearly similar to the facts in the case at bar, are as follows: Hilderbrand v. Ry. Co., 298 S.W. 1070; York, Admrx. v. Ry. Co., 198 N.W. 377; Castle v. Ry. Co., 166 N.W. 767. (5) Plaintiff did not have to offer direct or positive proof that the grease covered sill-step, was the result of some antecedent fault of commission or omission on the part of defendant, and that such negligence caused his injury. Halt v. Ry. Co., 279 S.W. 148. (a) "The manner and circumstances of the occurrence and all the accompanying surroundings, as proven, may be examined in order to ascertain and determine whether or not an inference that a negligent defect caused the injury was a reasonable one." Railroad Co. v. Stroup, 239 Fed. 75; Strother v. Railroad Co., 188 S.W. 1102. (b) "If the plaintiff shows facts and circumstances from which negligence of the defendant and the causation of the accident by negligence may be reasonably and legitimately inferred, the case should be submitted to the jury." Patton v. Ry. Co., 179 U.S. 658. (c) "Where plaintiff shows circumstances under which accidental injury occurred, and information as to the cause thereof is wholly within defendant's knowledge, burden shifts to defendant to establish its freedom from negligence." Stephens v. Kitchen Lumber Co., 2 S.W. (2d) 375.

E.T. Miller and Mann, Mann & Miller for respondent.

(1) None of the assignments of error raised by appellant, other than the correctness of the trial court's ruling in granting the new trial on the ground that the defendant's demurrer to the evidence should have been sustained, are now before the court or subject to review on this appeal. State ex rel. Caruthers v. Little River Drainage District, 271 Mo. 437, 196 S.W. 1115; Ross v. First Presbyterian Church, 272 Mo. 96, 197 S.W. 563; Dunn v. Oil Development Co., 318 Mo. 139, 1 S.W. (2d) 128; Turner v. Hine, 297 Mo. 160; Schee v. Schee, 319 Mo. 542, 4 S.W. (2d) 760; Story v. August, 10 S.W. (2d) 966; Panagos v. General Cigar Co., 268 S.W. 644. (2) No actionable negligence of defendant was proven; the demurrer to the evidence should have been sustained and the order of the trial court sustaining the motion for new trial on that ground must be affirmed. Appellant asserts a case was made for the jury on either of two theories; first, the presence of oil on an otherwise safe and mechanically perfect safety appliance constituted a violation of the Safety Appliance Act; and, second, common-law negligence arising from the alleged presence of oil on the rung of the ladder, from which plaintiff's foot slipped, when the car left Pensacola and for a length of time prior thereto sufficient for defendant, by the exercise of ordinary care, to have discovered and removed it. No case for the jury was made upon either of these theories. (a) The evidence shows without contradiction, and appellant in his brief concedes, that the ladder and all parts thereof were in perfect mechanical condition and constructed and maintained in strict compliance with the provisions of the Safety Appliance Act. The mere presence of oil upon a rung of the ladder, otherwise constructed and then maintained in strict compliance with the act, does not constitute a violation of the act, or render the ladder unsafe or insecure, within the meaning of the Safety Appliance Act. Riley v. Railroad Co., 44 S.W. (2d) 141; Ford v. Railroad Co., 54 Fed. (2d) 342 (certiorari denied by Supreme Court of United States, March 21, 1932, not yet officially published); Erie Railroad Co. v. Lindquist, 27 Fed. (2d) 99; Frederick v. Erie Railroad Co., 36 Fed. (2d) 718; Reeves v. Railroad Co., 147 Minn. 114, 179 N.W. 690; Slater v. Railroad Co., 146 Minn. 390, 178 N.W. 814. (b) There is no evidence, either direct or circumstantial, from which a legitimate inference may be drawn, as to any one of the following facts necessary and indispensible to plaintiff's right to recover under the charge of common-law negligence, namely: (1) That there was oil on the rung of the particular ladder from which plaintiff fell, at the time he fell. (2) That there was oil on this rung of this ladder at the time the inspection was or should have been made before the car left Pensacola, Florida. (3) That a reasonably careful inspection before the car left Pensacola would have disclosed the presence of the oil. (4) That from such a discovery, if made, it would have appeared to a man of ordinary prudence that such condition would naturally and probably result in injury to one using the ladder. (5) That no such inspection was made. While direct proof of negligence is not required and it may be established by proof of circumstances from which its existence may be inferred, such inference must be a legitimate one and not mere speculation or conjecture. Each inference must rest upon its own fact; no one can be based upon another or preceding inference. Negligence cannot be established by building inference upon inference and in no other manner were the facts necessary to plaintiff's right of recovery established. Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 428; State ex rel. City of Macon v. Trimble, 12 S.W. (2d) 734; State ex rel. Public Utilities Co. v. Cox, 298 Mo. 433, 250 S.W. 552; Hamilton v. Railroad, 250 Mo. 714; Thompson v. Railroad Co., 274 S.W. 531; Layton v. Chinberg, 282 S.W. 436; Strother v. Railroad Co., 188 S.W. 1102; Webber v. Milling Co., 242 S.W. 989. The Supreme Court of the United States has consistently held in cases arising under the Federal...