Hawkins v. St. Louis & S. F. R. Co.

• Citation: 174 S.W. 129,189 Mo. App. 201
• Decision Date: 01 March 1915
• Docket Number: No. 1347.,1347.
• Parties: HAWKINS v. ST. LOUIS & S. F. R. CO.
• Court: Court of Appeal of Missouri (US)

174 S.W. 129

189 Mo. A. 201

HAWKINS v. ST. LOUIS & S. F. R. CO.

No. 1347.

Springfield Court of Appeals, Missouri.

March 1, 1915.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by A. J. Hawkins against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hawkins sued the defendant railroad company to recover $30,000 as damages for personal injuries sustained by him while in defendant's employ at its roundhouse in Springfield, Mo. The action was brought under the federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, c. 149; Fed. Stats. Anno. Supp. 1909, p. 584), as amended April 5, 1910 (36 Stat. at L. 291, c. 143; U. S. Comp. Stat. 1913, §§ 8657-8665). in the petition it was sufficiently averred that defendant was a corporation operating a line of railway as a common carrier in interstate commerce, and that plaintiff at the time he was injured was employed by defendant in such commerce. It was admitted at the trial by the parties that the engine which plaintiff was helping take out of defendant's roundhouse was being taken out preparatory to its run in pulling a freight train carrying interstate commerce, so that these facts were not in issue.

The petition, among other things states these facts: Plaintiff was assistant general foreman at the roundhouse where locomotives were housed and stalled, his hours being from 7 p. m. to 7 a. m. every night. On November 17, 1912, plaintiff and a hostler at about 6:40 a. m. went to stall No. 14 to pilot engine No. 1328 out of the roundhouse to the coal chute and water tank. After the hostler had started the engine, plaintiff undertook to walk along by its side in the stall until he could get to a place where he could mount the engine at the step between the tender and engine proper (alleging it was his duty to get on the engine), and while so doing he stepped on a small screw-jack lying on the floor of the roundhouse which rolled under his foot, and he was thrown violently forward to the floor and towards the side of the engine, and his arm struck on the rail in front of the driver and was severed between the elbow and the wrist.

"Plaintiff states that, on account of the darkness in said roundhouse caused by the failure of said company to keep same properly lighted and further darkened by the steam and smoke then and there being emitted from said engine and other engines then and there in said roundhouse, he was unable by the exercise of ordinary care to see said jack, then and there lying upon the floor near the track upon which said engine was being operated. Plaintiff further states that said jack had been left in said position on the day previous by one of the machinists working under the general roundhouse foreman and had not been removed to a place where it would not be dangerous to plaintiff and other workers in said roundhouse doing their duties in the nighttime, and that its position where it was left by the machinist as aforesaid rendered the place where plaintiff and others were required to work in moving and working about said engine unsafe, and that said jack had remained in said position since the day previous, to the knowledge of the defendant, or by ordinary care it could have been known, and its position was not known to plaintiff, and on account of the darkness of said roundhouse it could not be discovered by ordinary care on the part of the plaintiff."

As stated in respondent's brief, the ground of negligence relied upon in the petition was the failure to exercise care in furnishing a reasonably safe place to work in two particulars: (1) Negligence in failing to properly light said roundhouse so that the light would shine between the stalls and engines, where plaintiff was injured. (2) Negligence in leaving the screw-jack on the floor of the round-house near the track where plaintiff was injured.

The answer was:

First, a general denial.

Secondly, it was averred:

"That whatever injuries were received by plaintiff at the time alleged in his petition were brought about by and were due to plaintiff's own negligence contributing thereto, in that it was the duty of plaintiff, as the night foreman in charge of the shops, to represent the defendant in the capacity of vice Principal, and that if there was any negligence in allowing the screw-jack referred to in plaintiff's petition to remain upon the floor of the roundhouse, at the place where plaintiff alleges he stepped upon it, by reason of the position occupied by plaintiff, said negligence, if any, was the negligence of plaintiff; and, further, in that, if the said roundhouse was not sufficiently lighted, it was the duty of the plaintiff to have provided himself with a lantern or torch, and that his failure to do so constituted negligence on his part."

Thirdly, defendant avers:

"That if the injuries sustained by plaintiff at the time alleged in his petition were caused by any failure to properly light said roundhouse, so that the light would shine between the stall and the engine where plaintiff was injured, the same was the result of the usual and ordinary risks of the business of defendant in which plaintiff was engaged in the manner in which it was carried on, and that the consequences thereof and the risks incident thereto were assumed by plaintiff as a part of his employment, for which reason plaintiff is not entitled to recover anything in this action."

The jury returned a verdict for $5,000, and defendant has appealed.

W. F. Evans, of St. Louis, W. B. Skinner, of Mt. Vernon, and Mann, Todd & Mann, of Springfield, for appellant. Fielding P. Sizer, of. Monett, for respondent.

FARRINGTON, J. (after stating the facts as above).

Appellant contends that plaintiff was not entitled to have the jury pass on the case as to either of the two specifications of negligence, and that therefore its peremptory instruction should have been given. This has necessitated a review of the evidence, considered in the most favorable aspect to plaintiff. Myers v. Pittsburgh Coal Co., 233 U. S. 184, 34 Sup. Ct. 559, 58 L. Ed. 906, loc. cit. 911.

Briefly stated, the plaintiff's case is as follows: He was the night foreman at defendant's roundhouse, and it was his duty to merely supervise and superintend such repairs as were necessary to get the "live" engines in shape for their run. Engines that were out of commission and required work other than that incidental to preparing them for service did not come under his supervision ; such work was carried on in the daytime, and occasionally the day men would work overtime for a part of the night, but such men would not be subject to plaintiff's control unless he was given special instructions with reference to their work. Plain. tiff's testimony is that it was not his duty to inspect the floors and stalls for the purpose of ascertaining that the day men or the night men had complied with the rule posted in the roundhouse by the defendant that all workmen should put away their tools when they stopped work. The defendant did employ two sweepers, whose duty it was to remain in the roundhouse something like an hour after the day shift had left, and whose duty it was during their hours to sweep out and pick up anything left on the floor that they should find. As to the engine in stall 14, the one in which plaintiff was injured, neither the plaintiff nor his men had any duties to perform about it, except to see that it was fired and taken out of the stall and prepared with water and coal; that is, he had no duties with respect to that engine that required him to go into that stall for any purpose other than the purpose for which he did go in when he was injured. There is evidence that work had been done by the day men on the engine in stall 13, and that a jack had been in use by the day men in working on that engine, and that the machinist had a "green" helper who was a new man. Plaintiff testified that he worked under the general roundhouse foreman, Burke, and that Burke had not assigned him any duty with reference to going around to see whether workmen had put up their tools and had not furnished him any men to see that it was done.

We must therefore hold that defendant's instruction in the nature of a demurrer to the evidence was properly overruled, because the testimony fails to show, as defendant contends, that the knowledge of the presence of the jack negligently being left on the floor must be conveyed to the company through the plaintiff, and that it was his duty to inspect and see that the floor at this place was clear of such obstructions.

Other facts material to the discussion will appear throughout the opinion.

With this statement of the pleadings and the evidence in mind, let us examine the sections of the federal Employers' Liability Act which govern this case.

Section 1 of the act provides, among other things, that every common carrier by railroad while engaging in commerce between any of the states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury resulting in whole or in part from the negligence of any of the officers, agents, or employds 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. Section 3 provides that in actions brought thereunder the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employ. Section 4 deals with the defense of assumption of risk in such a way as to show that the defense is still good except in certain cases, and this case does not fall within the exception.

"It is settled that since Congress, by the act of 1908, took possession of the field of the employer's...