Hatfield v. Thompson

• Decision Date: 10 November 1952
• Docket Number: No. 1,No. 42861,42861,1
• Citation: 252 S.W.2d 534
• Parties: HATFIELD v. THOMPSON
• Court: Missouri Supreme Court

Page 534

252 S.W.2d 534

HATFIELD v. THOMPSON.

No. 42861.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1952.

Thomas J. Cole and Berthold, Jones & Bialson, St. Louis, for appellant.

Bruneau E. Heirich, Chicago, Ill., J. M. Feigenbaum, Robert E. Feigenbaum, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

In this case brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51, plaintiff, a freight train conductor in the employ of defendant, recovered a verdict for $40,000 for personal injuries sustained in attempting to board a moving freight train at defendant's station in Wellington, Missouri. On defendant's motion to set aside the verdict and render judgment for defendant or in the alternative for a new trial, the trial court ordered a conditional remittitur in the sum of $10,000, with which plaintiff complied. Judgment was rendered in favor of plaintiff in the sum of $30,000. Defendant appealed.

The petition alleges that defendant was engaged in interstate commerce and that plaintiff was injured while employed by defendant in furtherance of defendant's business of such commerce and transportation; that, in accordance with a long established custom of plaintiff and other employees, plaintiff, in the course of his employment, undertook to board the rear end of a caboose of an eastbound moving freight train at Wellington after it had slowed down on signal; that upon taking hold of the grab iron on said cabooes and attempting to board it, the train lurched forward and his right foot sank into a hole in the cinders in the path adjoining the tracks, causing his left foot to miss the step on the caboose. Five specifications of negligence are then set forth as proximate causes of plaintiff's injuries.

Defendant's answer admits defendant was engaged in interstate commerce at the time and place plaintiff was injured but denies plaintiff was then and there so engaged; admits plaintiff undertook to board the moving train; denies the custom pleaded by plaintiff is applicable to this case; denies all negligence charged against defendant; alleges negligence on the part of plaintiff both as the contributory and sole cause of his injuries in that he violated a specific safety rule and disobeyed orders; and moves for dismissal of the action on the grounds plaintiff was not acting within the scope of his employment, was not engaged in his master's business, and was a trespasser or mere licensee.

Plaintiff's right to recover was, at the instance of plaintiff, submitted to the jury on only two of the grounds of negligence pleaded in his petition: Instruction No. 1 hypothesized a finding that his right foot sank into a hole on the right of way and that the existence of the hole, if it existed, constituted negligence on the part of defendant. Instruction No. 2 hypothesized a finding of negligent failure of defendant to maintain the right of way at the point involved in this case in a reasonably safe condition, by reason whereof plaintiff's foot slid into a hole. Each of the aforesaid instructions also hypothesized a finding that plaintiff was engaged in furtherance of interstate commerce for defendant. Neither of them required a finding that defendant had actual or constructive knowledge of the hole. Another instruction given in behalf of plaintiff directed a finding that he was engaged in interstate commerce when injured if the jury found that a part of his duty at Wellington was to protect defendant's trains engaged in interstate commerce and upon completion of that work he was required to return to the Jefferson City terminal and that he was subject to and under control of defendant until he returned.

Briefly summarized, defendant's assignments of error are that: (1) plaintiff was not acting within the scope of his employment when injured; (2) his injuries were occasioned by nonobservance of a safety rule known to him; (3) no negligence on the part of defendant was proved; (4) plaintiff's negligence was the sole cause of his injuries; (5) the instructions did not require a finding that defendant had actual or constructive knowledge of the defect alleged by plaintiff; and (6) the judgment is excessive. Determination of the validity of these assignments requires us to state the evidence in the light most favorable to plaintiff.

Plaintiff entered the service of defendant as a brakeman in 1924. He was promoted to the rank of conductor in 1942 and was serving in that capacity when he sustained the injuries out of which this suit arose. His home terminal was Jefferson City, where he also resided. His duties were to handle passenger and freight trains hauling cars in both interstate and intrastate transportation between St. Louis and Kansas City. This required a knowledge of train schedules and 'lineups', the time when and places where all trains were expected to be and their meeting points. He worked under the orders and supervision of the train dispatcher.

On the 28th day of July, 1949, he received a message from the train dispatcher to ride westbound freight train No. 71 from Jefferson City to Wellington, from which point he was to pilot a Western Union motorcar over defendant's tracks westwardly about two miles and return it to Wellington. Pursuant to that message he deadheaded to Wellington, arrived there about 5:50, a. m., on July 29, 1949, and entered upon his duties at 7:30, a. m.

Defendant's tracks at Wellington consist of the main line and a passing track. Freight trains engaged in interstate commerce operate thereon. No passenger trains operate at that point. The motorcar used in the operation under plaintiff's supervision and direction on this occasion had a trailer attached thereto. Western Union telegraph poles that had been in use on Western Union's line from Wellington westward for a distance of two miles were loaded on the trailer, brought to Wellington and there unloaded alongside the passing track. Plaintiff's duties were to direct the operation and movements of the motorcar so as to keep it clear of all trains and, if necessary, cause it to be set off the tracks at places provided therefor or placed on the siding.

The work was completed at about 9:30, a. m. It then was plaintiff's duty to call the train dispatcher at Jefferson City for further orders. In compliance therewith, he called the dispatcher from a railroad telephone near the station at Wellington and advised him the work of piloting the motorcar was completed. The dispatcher asked when he was coming home. Plaintiff said he would come home on Train No. 62. The dispatcher told plaintiff to wait until he communicated with the chief dispatcher, and, after so doing, advised plaintiff that the chief dispatcher refused to stop No. 62 for that purpose, that No. 62, a long train carrying perishables, was late, but that he would stop eastbound Train No. 80, which was due to arrive at Wellington in about four hours, and allow plaintiff to board it and deadhead to Jefferson City. Plaintiff told the dispatcher he might get a ride over to Myrick and ride from Myrick to Sedalia and then deadhead from Sedalia to Jefferson City on one of defendant's passenger trains, to which the dispatcher assented, but told plaintiff to keep in touch with him so that he could get a message to the engineer and crew on No. 80 to stop for him if he decided to deadhead on No. 80 from Wellington to Jefferson City.

Plaintiff did not thereafter have any further communication with the dispatcher. He waited on the platform of the station at Wellington for about an hour and fifteen minutes when he saw No. 62 approaching the station from the west. It carried eighty-seven cars and, due to a slow order in effect in that area, was then traveling eighteen or twenty miles an hour. He gave the engineer a signal indicating a desire to board the rear end of the train, which signal the engineer acknowledged by nodding his head and immediately beginning to slow the train. As the engine passed the point on the platform where plaintiff stood waiting to board the caboose, the train had slowed to ten to twelve miles per hour and continued to slow its speed as the caboose approached him. When the caboose came into plaintiff's view, he saw the conductor seated in the cupola of the caboose and held his suitcase up, whereupon the conductor left the cupola and came to the front end of the caboose and took the suitcase from plaintiff as the front end of the caboose passed. Plaintiff then 'set' himself by placing his weight on his right foot to board the rear end of the caboose. As he caught the rear grab iron and 'gave a little jump' to get on the caboose, the cinders and gravel under his right foot gave way, the train lurched, his right foot slid into a hole four or five inches in depth, causing the upper part of his left foot as he raised it toward the caboose steps to strike under the bottom step, his hands were jerked loose from the grab iron, and he was thrown to the ground and injured.

As he stood on the platform prior to attempting to board No. 62, he saw no hole in the platform and did not know anything about a hole being there except from the fact that his foot sank into it. He attributed his fall to the hole, rather than the forward lurch of the train.

The testimony of the crew in charge of Train No. 62 as to the manner in which the train was slowed for plaintiff to board the caboose and his attempt to board it and being thrown from it was substantially in accord with that of plaintiff, except they said the train did not lurch and they never saw nor had any knowledge of the hole.

Clarence Culp, defendant's station agent at Wellington, testified by deposition in behalf of plaintiff: An extra gang was then engaged in resurfacing and ballasting at Wellington, scattering chat and pushing and tamping it under the ties. This gang had completed its work in front of the station on the day before plaintiff was injured. The station is south of the tracks. A platform,...