Cummings v. Illinois Cent. R. Co.

• Decision Date: 14 June 1954
• Docket Number: No. 43633,No. 1,43633,1
• Citation: Cummings v. Illinois Cent. R. Co., 364 Mo. 868, 269 S.W.2d 111, 47 A.L.R.2d 513 (Mo. 1954)
• Parties: , 47 A.L.R.2d 513 CUMMINGS v. ILLINOIS CENT. R. CO
• Court: Missouri Supreme Court

Page 111

269 S.W.2d 111

364 Mo. 868, 47 A.L.R.2d 513

CUMMINGS v. ILLINOIS CENT. R. CO.

No. 43633.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Watts & Gentry, St. Louis, Joseph H. Wright, Herbert J. Deany, Chicago, Ill., of counsel, for appellant.

Edward W. Fredrickson, William L. Mason, Jr., Koenig, Dietz & Mason, St. Louis, for respondent.

LOZIER, Commissioner.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. Secs. 51-60. Plaintiff-respondent (herein called plaintiff) had a $71,250 verdict and, in compliance with the trial court's conditional order, remitted $10,250. Defendant-appellant (herein called defendant) appealed from the ensuing $61,000 judgment.

Defendant alleges error: In the overruling of its motions for a directed verdict; in the giving of an instruction; in the admission of certain evidence; and in the hearing, by the court out of the jury's presence, of certain testimony. Defendant also contends that the judgment is excessive.

Plaintiff alleged that her husband, Everett Lee Cummings, was fatally burned in defendant's 'B' Yard in Marion County, Illinois, on January 22, 1951. In Paragraph 10, she alleged that Cummings sustained his injuries thus: When he 'took an item of defendant's equipment, to wit, a can or small drum containing gasoline from the 'shack' or shed within defendant's said yard * * * and used the contents or a portion of the contents thereof, to start or accelerate the burning of a fire, in the mistaken belief that the said can contained kerosene; whereupon the said gasoline exploded, enveloping the said Everett Lee Cummings in flame and causing his injuries and death as aforesaid.' In Paragraph 13, plaintiff alleged that 'at the time of the casualty causing the death of plaintiff's husband, and for a long time prior thereto, it had been the custom of defendant to store and use kerosene only in and from plain cans or drums not painted red; to store and use gasoline only in and from cans or drums painted red; that her husband knew of such custom; that in reliance thereon he used contents of a can not painted red to start or accelerate a fire, in the belief that it contained kerosene; that the can contained gasoline, directly due to defendant's violation of the customs averred; that defendant also failed to warn her husband that the custom was not being followed, and that it had caused, allowed, and permitted the plain can to contain gasoline.'

Defendant's answer admitted that Cummings' death was the direct result of his injuries; and denied the allegations of Paragraphs 10 and 13 and that Cummings' injuries and death were caused by defendant's negligence.

About 6:30 or 6:35 on the morning of January 22, 1951, several of defendant's other employees heard screams and calls for help and 'saw a ball of fire roll out of the tool house.' When they reached the scene, Cummings was lying on the ground. Several brooms in the shed were on fire and a five-gallon galvanized can, with its bottom partly blown out, was on the ground outside the shed. It was 'blacked and smoked,' and had never been painted. None of them had ever seen it before that morning or knew where it came from.

All of Cummings' clothing, except a strip of his sweater on one arm, had been burned off and his entire body, except his head, face and hands, was severely burned. He was moaning and screaming with pain. They gave him a drink of water (for which he had asked) and covered him with an overcoat. He was 'rational' and prayed to live long enough to see his wife and child again. Lynch heard Cummings say, 'Save me, boy, save me.' Adams, yard superintendent, knelt down and prayed for him. Other than Piercy, no one heard Cummings say anything about what had happened. Over objection, Piercy testified that he heard Cummings say 'he got hold of the wrong can, he thought it was kerosene and it was gasoline.' Piercy did not 'hear him say anything else as to how it happened.' That was about 7 minutes after Cummings ran out of the shed, and about 15 minutes before the ambulance arrived.

En route to the hospital, Cummings asked the ambulance's owner if he thought he 'was going to make it' and the owner told him, 'I thought he would. He just said he had a baby.' They reached the hospital shortly before or shortly after 7 a. m. Within 5 minutes, a Roman Catholic priest went to the emergency room, talked to Cummings for 'a half hour or forty-five minutes, at least or maybe a little longer' and baptised him. Cummings 'was rational and knew what he was talking about.' In the priest's opinion, Cummings knew he was going to die, and 'I think he wanted to prepare himself to meet his God.' The priest did most of the talking 'because we were trying to conserve the little strength he had. I performed my duties as any priest should. I talked to him and tried to encourage him and prepare himself. I think he knew at the time that he was going to die and I was trying to encourage him to prepare himself to meet his God.' Nothing else was mentioned. Dr. Stevens, who treated Cummings, said that Cimmings was 'quite rational all the way through' (i. e. until he died at 1:32 that afternoon). The doctor did not tell Cummings how serious his condition was or of the possibility of his dying. Asked if Cummings believed or knew that 'he was going to die,' the doctor said, 'Right at first, I don't believe he did.'

About 8 a. m., just after the priest had left the emergency room, Deitz, defendant's dragline operator and Cummings' supervisor, entered the room and said to Cummings, 'You'd better hurry up and get well, we have a lot of work to do. * * * He told me, 'Well, it will be quite a while.' He just said if the good Lord was willing, he was ready to go but he said he didn't think he would make it.' Cummings asked Deitz if he (Deitz) had notified Mrs. Cummings and Deitz said he had. Over objection, Deitz testified: 'Q. After that, did he say anything to you, or did you talk to him any at all about what had happened? A. Then I asked him how the accident happened. He told me to start a fire, he picked up the wrong can. I asked him what kind of can it was, if it was marked in any way. I asked him if it was painted red. He said no, it was just an ordinary can. * * * I asked him where he got the can. He said it was in a corner of the tool house.'

The shed was on defendant's property, 1500 feet from any public road. The area was patrolled day and night by defendant's watchmen. The shed's doors were regularly kept locked. It was lighted by electricity. In it were a 'caboose stove,' a chair, a bench and a desk. Shovels and other maintenance tools were hung around the walls. Tracks ran through the shed and a track gasoline motorcar was regularly stored there at night by defendant's employee, Johnson, not a member of the maintenance crew which used the shed. No gasoline or kerosene were regularly 'stored or kept' in the shed.

In cold weather, the practice was for the first man arriving in the morning to unlock the shed and make a fire in the stove. He made fire out of kindling and coal, picked up in the yard by the men and kept in the shed. Asked 'what was the customary method' of starting the fire, Piercy, defendant's employee for 10 years, said, 'Most of the time, it was started with waste paper, stuff like that, and greased waste out of boxes (that is, oily waste removed from journal boxes and thrown down in the yard). * * * Q. To your knowledge, was it customary for them, in starting a fire, at times to use kerosene to help get the fire going? A. Sometimes they did when it didn't start off just right.' Jenkins, defendant's section hand 'off and on' for 34 years, the last 22 years continuously, had 'known people around the yards to use kerosene to get the fire going' throughout all those years.

In the opinion of plaintiff's expert witness, the explosion which blew out part of the bottom of the can and burned Cummings was caused by gasoline; and kerosene would not have exploded the can.

Plaintiff testified that Cummings left for work about 5 o'clock that morning; he had to drive 58 miles to work; he had no can with him when he left home; no gasoline was sued around their home and no can, such as that in evidence (admittedly the one found outside the shed), was ever kept around the home.

A company rule required that all gasoline containers be painted red and that no gasoline be kept in other-than-red cans. There was no similar requirement as to kerosene containers.

Such was plaintiff's case as to defendant's liability. Defendant's witness Blessing, maintenance crew supervisor, testified that the reason for the red-cans-for-gasoline rule was to 'warn employees.' If he 'saw a can there in the tool shed * * * that was not painted, and was not red, I would assume that it contained something other than gasoline. * * * You might find it (kerosene) in any kind of a can around there, * * * in fact, you might find it in a whiskey bottle * * * in jugs, or in gin bottles or in any kind of old cans.'

We first consider defendant's contention that its motions for a directed verdict should have been sustained because: 'Without the statements made by Cummings as to how he was injured * * * there was no substantial evidence of any negligence of defendant as alleged in plaintiff's petition which caused or directly contributed to cause Cummings' fatal injury.' Defendant argues: 'In order to find that the can which was found blown up after the accident had been stored or kept with the gasoline in it in the shed, the jury had to guess * * * that the can was in the shed before the accident * * * and that appellant violated its own rule and custom * * * by storing gasoline in a can that was not painted red * * *.'

To find defendant negligent in that respect, the jury did not have to indulge in 'guesswork or speculation.' As this is a Federal Employers' Liability Act case, negligence must be determined by principles established and...