Duke v. Missouri Pac. R. Co., 45654

• Citation: 303 S.W.2d 613
• Decision Date: 10 June 1957
• Docket Number: No. 2,No. 45654,45654,2
• Parties: William DUKE, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Respondent
• Court: United States State Supreme Court of Missouri

Page 613

303 S.W.2d 613

William DUKE, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Respondent.

No. 45654.

Supreme Court of Missouri, Division No. 2.

June 10, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 8, 1957.

Harris & Dubinsky and Cleo V. Barnhart, St. Louis, for appellant.

Harold L. Harvey, Marvin Boisseau, Jr., and Don B. Sommers, St. Louis, for respondent.

BOHLING, Commissioner

William Duke sued the Missouri Pacific Railroad Company, a corporation, for $250,000 damages for personal injuries. The court sustained defendant's motion for a directed verdict at the close of plaintiff's evidence on the theory an intervening efficient cause was the proximate cause of plaintiff's injuries. Plaintiff prosecutes this appeal.

In August, 1953, the City of St. Louis was rebuilding the Morganford bridge over defendant's double tracks, which are in a cut at that point. The John Kalicak Construction Company, Inc., was the general contractor, and the Henry Farber Painting Company was sub-contractor for the painting. At conferences between Roscoe Nelson, a Civil Engineer in the Department of Public Service supervising the construction for the city, Harold Kalicak, of the Construction Company, and officials of the defendant arrangements were made for defendant to place a flagman at the scene, whose duties were to see that the rightof-way, surface and overhead, was clear, and if not clear to stop the trains, or, if clear, give the go-ahead signal for the train to proceed under slow-order at 5 miles an hour. It was not the duty of the flagman to clear the tracks or take care of the materials for any of the construction men, including the painters.

Adolph Dewing, foreman, Clarence Mierzejewski and plaintiff were the employees on the job of the Henry Farber Painting Company. They were not employees of defendant. The three employees of the Painting Company assembled a 20' painting stage or scaffold on August 11th, raised it a foot off of the ground, and tested it by jumping up and down on the platform. The stage was suspended over the tracks from a horizontal 3' I-beam of the bridge, with top and bottom flanges of about 1'. The stage platform was about 5' below the top of the beam when in position for painting. A 3' firewall hook at each end of the stage passed over the I-beam. At the lower end of each hook was a block and tackle, through which a 3/4"' Manila rope passed with one end attached to a stirrup. The stirrups were triangular pieces of metal, and the base of a stirrup supported the stage platform at each end. The other end of the rope, used in raising and lowering the stage, is known as a 'fall.' It hung down from the block and tackle. It is customary practice for the fall to extend down to the ground. The stage is made secure when suspended by a taking a 'half-hitch' in the fall, we understand, at the block that goes into the firewall I-hook. The fall at each end of the stage was in good shape, the north fall being new rope. There was also a life line, a rope with knots tied in it fastened to an anchor and reaching down to the ground, from which workers on the stage could swing if anything happened.

About 11:30 a. m. August 11th, the stage was over the defendant's tracks with the north fall down in the center of defendant's north track when a passenger train approached over said track. The south fall was down in the vicinity of defendant's south track. Plaintiff, on the stage, watched the train. He estimated its speed at 10 to 15 m. p. h. Defendant's flagman, Anthony Steffen, took the north fall to the south, between the two tracks, that the train might pass. The engine and several cars of the train passed without incident. However, a switch engine approached over the south track from the opposite direction. The flagman released the north fall and started 'working' his flag toward the switch engine. This permitted the north fall (rope) to fall against the side of the train and catch between the passenger cars. Plaintiff stated it caught between the cars about six times, would stretch, jerk loose, and cause the ends of the stage to bang against the I-beam. This heavy strain caused a piece of the rope to break or be cut off and part of it to become frayed. Dewing cut off the frayed portion and threw it to the side. The south fall was not damaged.

When the train caught the rope plaintiff pulled himself on top of the I-beam and was not injured by the occurrence.

Harold Kalicak, Sr., whose company had the general contract, came out to the work. Plaintiff, being asked, told Kalicak what had happened and that he was not going back on the stage to work. Kalicak told plaintiff to paink what he could from the ground and after that plaintiff worked on the ground. He knew the stage was not safe, and did not get back on it. Later in the afternoon Mr. Farber came out. Plaintiff told him what had happened and Mr. Farber 'raised hell' about letting the rope get damaged. He directed that the ropes be coiled and put over the I-beam. Plaintiff did this. The stage was not used any more.

On August 13, 1953, Henry Farber directed plaintiff to take the stage down after the 11:30 train; stating 'you know how'; and that the other men would help. He did not give plaintiff any specific directions. Plaintiff proceeded in the customary manner. Dewing and Mierzejewski took positions on the ground to man the fall ropes; Dewing at the south fall and Mierzejewski at the north fall. Plaintiff lowered himself onto the stage to untie the half-hitches and intended to pull himself back on the I-beam after untying the half-hitches. Plaintiff first untied the south half-hitch. When he did so Dewing let his fall slip and the south end of the stage slipped down a little, a few feet. Plaintiff told Dewing to hold it. Dewing answered he had it. Plaintiff then walked up the incline, asking Mierzejewski for a little slack, and untied the half-hitch on the north fall. Mierzejewski then automatically lowered his end of the stage to level it. The stage was then too low for plaintiff to reach up and pull himself back onto the I-beam as he and his co-workers originally intended he should do. Plaintiff's co-workers lowered the stage a few feet. The weakened north fall then broke and plaintiff fell to the ground and was severely injured. It is for the injuries thus sustained that he seeks damages.

Plaintiff testified to the following effect: It is the duty of painters using a stage to make sure it is safe before getting on it. He was the most experienced stage man on the job and was the only one using the stage for painting. He had been on the job ten days and knew trains operated over the tracks. The north fall was hanging down on the track on August 11th. It was his, plaintiff's, 'duty to see that those falls did not get injured.' He saw the train catch and jerk the north fall. He knew the force of the train was a much greater force than the stage exerted on the rope and as a result there was probably some weakening of that rope, that it was not safe to get back on the stage, and that the reason the stage was being taken down on August 13th was because it was unfit for use. He got back on the stage because of the order of Mr. Farber, his employer, to take it down. No one from defendant told him to get back on it. No test whatever of the strength of the north fall was made after the train struck it. With sufficient help the stage could have been lowered with absolute safety without anyone getting on it, but three men could not do this. When they took the stage down the life line was coiled up on top of the I-beam and was not being used. Plaintiff saw no need to use the life line, stating you only use it when you are actually using the stage, not when you are letting it down.

The testimony was that after Dewing let the south fall slip, plaintiff could have had him level the stage by the south fall without putting any additional strain on the north fall, and then plaintiff could have untied the north fall and climbed back onto the I-beam. This was not done.

Plaintiff stated it was no fault of anyone connected with defendant that he got in a position where he could not climb back onto the I-beam or that he was not using the life line at the time. He and his witnesses testified that defendant had nothing to do with the reparing of the Morganford bridge, the erection or use of the stage, the manner in which the painters performed their work, or the lowering of the stage on August 13th, which was the duty of the Painting Company.

While plaintiff is entitled to the most favorable view of the established facts and inferences in support of his claim upon a motion for a directed verdict at the close of plaintiff's case, the review is not limited to isolated facts but embraces a consideration of the whole of the evidence adduced on behalf of plaintiff and conceded facts are not to be disregarded. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 142[7-9] and cases cited: Young v. City of Farmington, Mo., 196 S.W.2d 124, 126; People's Finance Corp. v. Buckner, 344 Mo. 347, 126 S.W.2d 301, 302.

Plaintiff invokes the rule of respondeat superior, also expressed in another Latin maxim: 'Qui facit per alium facit per se.' O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085, 1088. He states that, while the flagman was not required to personally remove any obstruction from the tracks, the flagman's act in moving the north fall that the train might pass was for his employer's benefit and in furtherance of his employer's business, and his employer, defendant, is liable although the flagman selected a wrong or negligent method therefor, or exceeded his authority or violated specific orders of his master in doing so. Linam v. Murphy, 360 Mo. 1140, 232 S.W.2d 937, 942; Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509, 511; Simmons v. Kroger Grocery & B. Co., 340 Mo. 1118, 104 S.W.2d 357, 359. However, the instant case is not the...