Higgins v. Terminal R. R. Ass'n of St. Louis

• Citation: 362 Mo. 264,241 S.W.2d 380
• Decision Date: 09 July 1951
• Docket Number: No. 1,No. 42180,42180,1
• Parties: HIGGINS v. TERMINAL R. R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

Page 380

241 S.W.2d 380

362 Mo. 264

HIGGINS v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 42180.

Supreme Court of Missouri, Division No. 1.

July 9, 1951.

Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.

Harold O. Piening, E. D. Franey and Hay & Flanagan, all of St. Louis, for respondent.

VAN OSDOL, Commissioner.

In this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., the jury returned a $45,000 verdict for plaintiff, and defendant has appealed from the ensuing judgment

Plaintiff was injured while working for defendant as a subforeman of a car-repair crew. He fell down the steps of defendant's switch shanty located in defendant's yards at a point a few feet east of Ewing Avenue and a little south of Atlantic Avenue in St. Louis. Plaintiff had alleged and plaintiff's case was submitted to the jury on the theory that defendant had failed to exercise ordinary care to furnish plaintiff with a reasonably safe place to work in that defendant 'negligently suffered and permitted water to leak from the radiator in the shanty * * * onto the floor thereof'; and that plaintiff in the performance of his duties went into the shanty and, when he was leaving, the water on the shanty floor caused him to slip and fall down the concrete steps, and to suffer serious injury.

Herein upon appeal, defendant-appellant contends (1) plaintiff failed to make out a submissible case; (2) the trial court erred in refusing or failing to declare a mistrial or to reprimand plaintiff's counsel for asserted unfair tactics in the progress of the trial, for persistently attempting to introduce incompetent evidence, and for referring to defendant as a 'big corporation' in argument to the jury; and (3) the Instructions Nos. 1, 2 and 3, given at plaintiff's instance, were erroneous. Defendant-appellant further contends (4) the amount of the jury's award, $45,000, was grossly excessive. In endeavoring to adequately treat with these contentions it is necessary to make a rather extensive statement of the evidence.

On Christmas morning, 1946, plaintiff reported to defendant's yards for work. Plaintiff and his crew of four men, Lamkin, Turnbull, Misko and Hamilton, assembled at 8:30 o'clock. There was no work for them to do, and it was suggested by their foreman that they should go into a nearby Wabash passenger car where it was warm. (At 9:00 o'clock the temperature was 34~; at noon, 45~; and at 3:00 in the afternoon, 59~.) While plaintiff and his repair crew (except Hamilton, who was sent elsewhere) were in the warm passenger car, one of the crew went out and bought a pint of bourbon whisky. The evidence tends to show that members of the crew drank the liquor, and later drank beer at lunchtime. Plaintiff denies he drank any whisky or beer, but there was evidence to the contrary. Plaintiff and his crew, except Hamilton, remained in the passenger car until 10:00 a. m., when they were assigned the repair of a Pullman car, 'Tripoli.' At 11:45, they went to lunch, returning to their work at 12:40, and finished their repair assignment about 2:35. It was plaintiff's duty to report to the yardmaster, Marlow, that the repaired Tripoli was ready for service and, at approximately 3:00 o'clock, plaintiff went to the switch shanty to telephone his report to the yardmaster's office.

The switch shanty faces southwardly. Entering the shanty from the south, one must walk up a flight of five concrete steps from a concrete landing 21"' X 34"' at about the ground level, the top step being a concrete platform 22"' X 34"' at the level of the concrete shanty floor. From the landing (at the ground level) the steps rise 39 1/2' to the level of the platform and shanty floor. A beveled concrete 'riser' about one inch high six inches wide extends across the threshold of the shanty's front door. Iron hand railings are fixed on either side of the door. These railings slope parallel with the approach of the steps.

The frame-shanty building is heated by a 'radiator' consisting of six horizontal steampipes along part of the west wall. The horizontal steampipes merge into a vertical pipe of larger dimension. A petcock is set in the upper end of the vertical pipe, permitting drainage of the radiator; and a hose, attached to the outlet of the petcock, extends to and passes through a cardboard tacked over the lower sash of a window in the shanty's west wall. A toilet and shower room is partitioned off of the main south room. The main south room contains a stove, a telephone and chairs. The shanty also houses a drinking fountain. There are no restrictions on employees' use of the shanty. They use the toilet and shower, the drinking fountain, the telephone; they rest in the main south room at times; and they may use the room for dining and resting during the lunch hour.

Plaintiff introduced evidence tending to show that water leaked out of the petcockhose connection and passed down to the floor and trickled over to the threshold of the south door. 'The water came from a radiator * * * and every time the steam was on * * * why this radiator would leak and that water came off the radiator and down towards the door, because the floor sloped slightly * * * out to the door * * *. It's a chronic affair.' The concrete floor is practically 'as smooth as that desk.' The leak had been reported several times, and repairs were made 'but then it pumped out again.' A witness testified the radiator had leaked 'off and on for three years.' Another witness said the floor was wet during the winter months 'pretty near all the time.' Misko, a witness for plaintiff, testified the floor was wet at 9:30 the morning of December 25th, the water 'was formed right before the sill.' Turnbull, a witness for defendant, testified he went into the switch shanty about 3:00 o'clock--'The floor was wet.' The wet area 'was about three or four feet from the radiator to the door.' On the ground of surprise, defendant's counsel was permitted to cross-examine the witness Turnbull.

Plaintiff testified that (having used the telephone in the switch shanty to report the repaired Tripoli was ready for service) he talked momentarily to Turnbull, who was then in the shanty toilet, and started out the south shanty door; 'I got approximately fifteen inches or so from the door, which was open, when my right foot slipped and banged me up against the door frame on the right side of the shanty, catapulting me out the door, straight down the steps, or wherever I hit.' Plaintiff said that water on the floor caused him to slip, 'which I had seen when I came in the shanty, which was an everyday affair.' Plaintiff was interrogated concerning a former statement to defendant's claim department purportedly as follows, 'Well, as I started out of the shanty after notifying Mr. Turnbull what to do, as I approached the entrance on the way out my right foot slipped on the water-covered concrete floor, striking this riser, which threw me off of my balance, because I was pitched forward when I struck the riser, and in throwing me off my balance my right side struck the door frame, on the west side of the door frame, pitching me forward down the steps, and I made a grab to catch the hand railing on the east side * * *.' Plaintiff explained, 'that's the way the accident returned to my mind at the time. * * * I stated there was only one thing I could strike when my foot slipped, the riser on the sill, it was the only protruding thing to throw me off my balance otherwise and flopped.'

After his fall, the unconscious plaintiff was carried up the steps and laid on the floor of the shanty. There was testimony plaintiff was laid on the floor immediately within the door. (This testimony is urged by defendant as evidence the floor at the door was not wet, the inference being that no one would have laid plaintiff down on a wet floor.) The witness Turnbull testified plaintiff was laid in 'the middle of the floor * * * three feet north of the door-way.' Some of the witnesses for defendant said the floor was dry. Others were unable to state whether the floor was wet or dry.

There was also evidence plaintiff was 'standing perfectly still' on the platform immediately before he 'started to fall * * *. Whether he came out of the shanty or not I don't know.' One witness said he saw a bunch of men standing on the platform, and plaintiff fell 'like you would chop a tree down * * * just toppled.' Another witness testified he only saw plaintiff in the 'middle of the act' of falling.

(1) In examining the question of the submissibility of plaintiff's case, we bear in mind that under our system of administration of justice the jury has the sole responsibility of finding facts in actions at law wherein, as in the instant action, the factual issues are submitted to them, so that when a case is submitted to them upon substantial evidence, on correct instructions telling them the facts essential to their verdict, it is not the function of the appellate court to disagree with their view as to what are the true facts. Hardin v. Illinois Central R. Co., 334 Mo. 1169, 70 S.W.2d 1075; Pashea v. Terminal R. Ass'n of St. Louis, 350 Mo. 132, 165 S.W.2d 691; Tatum v. Gulf, M. & O. R. Co., 359 Mo. 709, 223 S.W.2d 418.

Defendant-appellant contends the evidence relied on by plaintiff is wholly insufficient to establish the presence of water on the floor; or that water came from a leaky radiator; or that the presence of water created a hazard. Defendant urges that plaintiff's own testimony is in conflict with physical laws, and is so lacking in substance 'as to leave one fumbling in the dark' to determine whether or not he ever saw water on the floor. Defendant further asserts that, of all the other men in the shanty that afternoon, none other than plaintiff testified there was water on the floor except Turnbull and Misko. Defendant argues that Misko's testimony was unquestionably false; and Turnbull's testimony was...