Elliott v. Payne

• Decision Date: 14 March 1922
• Docket Number: No. 22339.,22339.
• Citation: 239 S.W. 851,293 Mo. 581
• Parties: ELLIOTT v. PAYNE, Agent.
• Court: Missouri Supreme Court

239 S.W. 851

293 Mo. 581

ELLIOTT v. PAYNE, Agent.

No. 22339.

Supreme Court of Missouri, Division No.

March 14, 1922.

Motion to Transfer to Court en Banc Overruled April 8, 1922.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by John Elliott, administrator of the estate of Earl D. Elliott, deceased, against John Barton Payne, Agent. From judgment for plaintiff, defendant appeals. Reversed.

B. J. Woodson and Strop & Mayer, all of St. Joseph, for appellant.

W. B. Norris and Barney E. Reilly, both of St. Joseph, for respondent.

GRAVES, J.

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, Kan. 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 (U. S. Comp. St. §§ 8657-8665). Elliott was a fireman on an interstate commerce passenger trafIn 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. Dines, as Director General of Railroads, at the time of his death, December 13, 1919; (2) that Elliott was guilty of contributory negligence; (3) that the injuries to Elliott was 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, and that, in the appointment of the administrator now suing, fraud was practiced upon the probate court of Buchanan county, Mo.; and (5) the pendency of a proceeding in such probate court to revoke the appointment of such administrator. Reply was a general denial. Details of the evidence will be left to the opinion, as such evidence may be applicable to the several points made. Such is the outline of the case.

I. The outline of the answer which we have given in the statement would indicate some questions which evidently have been abandoned by the defendant. The assignment of errors proper, as found in the brief, covers but three matters, as follows:

"The court erred in overruling defendant's instruction in the nature of a demurrer.

"The court erred in giving plaintiff's instruction No. 1.

"The court erred in giving plaintiff's instruction No. 5."

In the fourth point in the brief it is urged that the verdict Is grossly excessive. These four matters and the natural subdivisions thereof constitute the questions for decision. As to whether a demurrer to the evidence should have been sustained, three things are to be considered: (1) Was their actionable negligence shown as against the defendant? (2) Was deceased ha the line of his duty at the time of the accident? and (3) Did he assume the risk, as such risk is defined by the federal courts in the construction of the federal Employers' Liability Act? In view of the whole situation, the vital question is that of liability or no liability. We shall therefore take these alleged errors in their order, because, if the record shows no liability, further questions become immaterial.

II. The train was going west, and as it approached the station of Green Leaf the deceased stepped from his engine onto the eastern end of the depot platform, as testified to by plaintiff's witnesses. This platform was of considerable length (200 feet), and extended for some distance both to the east and west of the depot proper. It was constructed of brick placed side by side, with a sand filling between them, as we gather it. Around the outer edges was a concrete curbing. At places the top of this curbing was flush with the top of the brick. At least at some places the top of the bricks was lower than the curbing. At those places narrow strips of water would accumulate and freeze. The platform sloped slightly toward this curb, which curb was near the first rail of the railroad tracks. It was ice formed in this way that occasioned the injury, as it is alleged.

As said, this is an action under the federal Employers' Liability Act. The first act of 1906 (Act Cong. June 11, 1903, c. 3073, 34 Stat. 232) was declared unconstitutional, and the present amended law has for its basis the act of 1908. The difference between the two acts may have occasioned some rulings in the lower federal courts and state courts which would not be strictly applicable now. The act of 1906, as to acts for which damages may be recovered, provided:

"For all damages which may result from the negligence of any of its officers, agents, or employees, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, ways, or works."

The act of 1908, as to the same subject, provides:

"For such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

It will be noted that the word "ways" is used in the act of 1906, but is not used in that of 1908. In 1908 there were added the words "boats, wharves, or other equipments." With this outline of facts and law, we take the first contention of appellant as to the overruling of its demurrer to the evidence.

(a) a is urged that there was no duty to furnish a platform to deceased, and that, absent a breach of duty, there was no negligence.

(b) That there was no duty to defendant that required deceased to leave his moving engine, and under such circumstances there was no duty to have a platform upon which he could alight in performance of any duty to the master.

(c) That the evidence disclosed a reasonably safe walk.

We shall dispose of the latter contention first. If there was a duty devolving upon the defendant to build and maintain this platform in a reasonably safe condition for the use of the deceased, then the mast that can be said is that the evidence conflicts, and the jury's verdict binds this court. Plaintiff had evidence tending to show that at places the bricks were lower than the curbing, and this condition permitted the accumulation of water and ice. Whether the defects were in the original construction, or appeared later by reason of use and the sinking of the bricks into the base upon which they were placed, can make no material difference. The charge in the petition is that defendant maintained the platform in a defective condition.

Going to the first suggestion, Was there a duty to maintain the platform for deceased? Reverting to the petition, it will be noted that the negligence charged is that of the "defendant," and not as to defendant's officers, agents, or employees. The action is under the latter clause of section 1 of the federal Employers' Liability Act which reads:

"Or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

Query: Does a depot platform fall within this enumeration? The statutory negligence, or neglect of duty, is as to the things mentioned, and none other. If a platform falls within the things named, then a neglect of duty as to the platform gives actionable negligence; if not, then there is no negligence in the case, and plaintiff must fail in her...