Elliott v. Payne
| Citation | 239 S.W. 851,293 Mo. 581 |
| Parties | JOHN ELLIOTT, Administrator of Estate of EARL D. ELLIOTT, v. JOHN BARTON PAYNE, Agent For the President Under the Transportation Act of 1920, Appellant |
| Decision Date | 08 April 1922 |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Reversed.
B. J Woodson and Strop & Mayer for appellant.
(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer, offered at the close of the evidence. (a) The deceased had no duty requiring him to alight from a moving train; on the contrary, his duty required him to remain on the train until it stopped. There is no evidence that any emergency called upon him to deviate from his duty; therefore, the defendant owed no duty to furnish deceased a reasonably safe place to alight from the moving engine, and it must follow, even if there was a failure to furnish such a place, it was not a breach of any duty which defendant owed to the deceased. Thompson on Neg sec. 4677; 1 Bailey on Personal Inj., 219, sec. 79; Berry v. Railroad, 98 Mo. 70; Schaub v. Railroad, 106 Mo. 92; Stag v. Tea Co., 169 Mo. 496; Karth v Railroad, 105 A. (N. J.) 10; Louisville & Nashville Railroad v. Hocker, 111 Ky. 707; Shadoan's Adm. v. Railroad, 26 Kyl. L. Rep. 828; Byram v. Railroad, 154 N.W. 1006; Hobbs v. Great Northern, 142 P. 20; Reeve v. Northern Pacific, 144 P. 63; Kennedy v. Chase, 119 Cal. 637. (b) The photographs in evidence show indisputably that the platform was such a platform as is maintained by all railroads, and that it was as nearly perfect as even the highest degree of care would require. Neither witnesses nor juries should be permitted to pronounce as dangerous that which the physical facts show to be reasonably safe. (c) The deceased, being an experienced fireman, knew that during winter weather there was likely to be some ice on any depot platform in Kansas, and, therefore, as a matter of law, he assumed the risk of coming in contact with ice when he jumped from the moving engine. Under the circumstances the risk was obvious. Pryor v. Williams, 41 S.Ct. 36. (2) The court erred in giving plaintiff's instruction number one. (a) The instruction was erroneous in submitting questions with no evidence upon which the jury could predicate a finding. Wilkerson v. Eilers, 114 Mo. 253; Mateer v. Mo. Pac. Ry. Co., 105 Mo. 353; Modlagl v. Iron Co., 248 Mo. 601. (b) The instruction was erroneous in that it permitted plaintiff to recover if defendant was guilty of a breach of duty to any employee, regardless of whether or not that duty was owing to plaintiff. The instruction again and again told the jury that if the platform was dangerous to employees of the defendant, then the defendant was liable. 20 R. C. L. 47, sec. 41; 1 Sherman & Redf. on Neg. (5 Ed.) sec. 8; Feeback v. Railroad, 167 Mo. 206; Morris v. Rounsaville, 132 Ga. 462; Williams v. Railroad, 139 Ill. 491. (3) The judgment in this case is grossly excessive and should be reversed for that reason. Bank v. Davis, 233 S.W. 406.
W. B. Norris and Barney E. Reilly for respondent.
(1) The defendant was required to furnish a reasonably safe platform at its station, and if the platform so furnished was maintained in such a way that by reason of its defective condition water and melting snow were likely to and did flow over it and form pools of water thereon by reason of its defective condition and in cold weather such pools of water were likely to and did freeze and form ice and that thereby a dangerous obstruction was maintained by it, then the defendant was negligent. Whether the platform was in such condition was a jury question. Waterbury v. Ry. Co., 104 Iowa 32; Melody v. Railroad, 161 Iowa 695; Renn v. Ry. Co., 170 N.C. 128; Murphy v. Paper Co., 156 Wis. 9; Ferebee v. Ry. Co., 163 N.C. 351; Ry. Co. v. Bransteeter, 200 F. 255; Wilson v. Express Co., 165 S.W. 36; Johnson v. Ry. Co., 164 Mo.App. 600. (2) Elliott in leaving his engine was in the line of his duty and engaged in interstate commerce. Neither the period or nature or continuity of service is changed by a brief stepping aside from or cessation of activities, if, for instance, visiting a wayside place for a lunch or other legitimate and common means of refreshment, the employee all the time being within customary reach for continuance of the duties of service. Such action is not an abandonment of the employment, but a mere suspension, and under the evidence Elliott leaving the engine for any purpose was not an abandonment of his employment, but was within the scope of his employment. Rhea v. Ry. Co., 171 Mo.App. 160; North Carolina Railroad v. Zackary, 232 U.S. 248; Erie Railroad Co. v. Szary, 253 U.S. 86, 64 Law Ed. 794; Philadelphia B. & W. Railroad Co. v. Tucker, 35 App. D. C. 123, L. R. A. Supp. 1915 C, 39, note; Sanders v. Railroad, 81 S.E. 283; Barry v. Railroad, 98 Mo. 70; Graber v. Railroad, 159 Wis. 414; Baltimore & Ohio v. Whitacre, 124 Md. 411, 242 U.S. 169; Willever v. Railroad, 87 N. J. L. 348; Parkinson Sugar Co. v. Riley, 50 Kan. 401; Broderick v. Depot Co., 56 Mich. 261; Thomas v. Railroad, 108 Minn. 485; Northwestern Iron Co. v. Industrial Board, 160 Wis. 633; Davis v. Railroad, 134 Minn. 49; Easter v. Railroad, 76 W.Va. 383; Chicago R. I. Railroad Co. v. Oldridge, 33 Tex. Civ. App. 436; L. & N. Railroad Co. v. Walker, 162 Ky. 209; Ingram v. Ry. Co., 89 Vt. 278; Martin v. Cotton Oil Co., 194 Mo.App. 106; Williams v. Chaff, 222 S.W. 416; Ewald v. Ry. Co., 70 Wis. 420; Adams v. Iron Cliffs Co., 78 Mich. 271; Padgett v. Ry. Co., 99 S.C. 364. (3) In the absence of evidence the presumption is that Elliott was carrying out the duties of his employment. Hartwell v. Parks, 240 Mo. 546; Thornton v. Railway Co., 82 S.E. 433; Flucker v. Steel Co., 106 A. 192; Worthington v. Elmer, 207 F. 306; Jones v. Ry. Co., 86 N.W. 838. (4) The defendant was required to anticipate that its employees would use the platform in alighting from moving engines or trains. The rule of liability is that it is not necessary that the particular injury complained of could be reasonably anticipated or even injury to the particular individual. It is sufficient if some injury to some person is likely to happen from the defect. Yarbough v. Lumber Co., 211 S.W. 713.
Action by the administrator of Earl D. Elliott, deceased, who was killed by being run over by a train of the Missouri Pacific Railroad at Green Leaf, Kansas. As originally brought this suit was against the railroad and Walker D. Hines, Director General of Railroads. Later it was dismissed as to the railroad company, and continued as against John Barton Payne, Agent for the President, under the Transportation Act of 1920. The action is one under the Federal Employers' Liability Act. Elliott was a fireman on an interstate commerce passenger train of the Missouri Pacific Railroad Company. There is no question as to the action being properly brought under the Federal act, supra, if as a fact the deceased, at the moment of his injury, was in the performance of his duties as fireman upon such train. Of the latter fact question is made by the defendant.
Deceased undertook to alight from his moving train at the depot platform of the said railroad at Green Leaf. In so doing he fell or was dragged under the train and killed. A negligent construction of this platform is thus stated in the petition:
"That in and about the depot building at said Green Leaf defendant maintained a platform that extended from said depot building to the tracks of the defendant upon which said train was traveling, and that the surface of said platform was maintained in a rough, low and uneven condition with an incline towards said tracks, and that by reason of the edge of said platform being raised above the surface thereof and because of said condition said platform was dangerous for its employees to use the same, and was likely to and did accumulate water, snow and ice in such a way that said water, snow and ice could not flow off from said platform and over said edge, but that by reason of said edge of said platform being higher than the surface of said platform and by reason of said condition said platform was dangerous and not reasonably safe for the employees of the defendant to use the same."
Plaintiff then avers that by reason of said faulty construction of this platform snow and ice did accumulate thereon, and especially near the outer edge of said platform, so that at this edge and near the point where one would step in alighting from an engine, there was "a ridge of said ice and snow, . . . presenting a surface slick, rough, uneven, full of ridges and sloping toward said railroad tracks," of all of which the defendant had knowledge for such length of time as to have removed and remedied the same before the accident. Deceased left a widow and one child, for whose benefit this action is brought. The modest sum of $ 100,000 damages is asked, and the jury returned a verdict for $ 30,000. By forced remittitur this was reduced to $ 25,000 and from a judgment for that sum the defendant's appeal is taken.
By answer, Payne first admits his official capacity, and denies all other allegations of the petition. Further portions of the answer aver, (1) that Elliott was not engaged in the business conducted by Walker D. Hines, as Director General of Railroads, at the time of his death, December 13th, 1919; (2) that Elliott was guilty of contributory negligence; (3) that the injuries to Elliott were the result of the risks ordinarily incident to the business in which Elliott was engaged; (4) that the deceased was not a resident of Missouri, and had no property in Missouri, but was a resident of Kansas,...
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