Hilderbrand v. St. Louis-San Francisco Ry. Co.

• Decision Date: 08 November 1927
• Docket Number: No. 19801.,19801.
• Parties: HILDERBRAND v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

298 S.W. 1069

HILDERBRAND v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 19801.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by John T. Hilderbrand against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller and A. P. Stewart, both of St. Louis, and A. E. L. Gardner, of Clayton, for appellant.

Ralph & Baxter, of Clayton, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff while in the employ of defendant. The verdict of the jury was for plaintiff, in the sum of $7,000, and from the judgment rendered thereon defendant, after an unavailing motion for a new trial, has duly perfected this appeal.

The petition alleged that defendant was a common carrier of passengers and freight in interstate commerce; that it owned and operated lines extending across this state and into other states; that it was the duty of plaintiff, as an employee of defendant, to attend to refueling locomotive engines, and replenishing them with sand and water; that on February 23, 1924, he was directed by his foreman to refuel a certain engine; that it was necessary for plaintiff, in the performance of his duty, to go upon the top of said locomotive and the tank thereof, to ascertain the amount of fuel oil required; that, while so engaged, he slipped upon the oily surface of the top of the tank, and was caused to fall, whereby he sustained serious and permanent injuries.

The particular charge of negligence relied upon was that defendant failed to exercise ordinary care to provide plaintiff with a reasonably safe place in which to work, in that defendant knew, or by the exercise of ordinary care could have known, that the surface of the top of the tank of said locomotive was dark and unlighted, and was slick and slippery, and covered with oil, but that, notwithstanding the same, defendant ordered and required plaintiff to work in said unsafe place, where, because of the unsafety thereof, and defendant's negligence, he was injured. There was a further allegation that the locomotive upon which plaintiff was injured was used on the day in question, as well as prior and subsequent thereto, in interstate commerce.

The answer of defendant was a general denial.

The evidence disclosed that plaintiff was engaged at defendant's roundhouse, located at 3900 Chouteau avenue, in the city of St. Louis, as a hostler, and that his duties as such were to take engines into and out of the roundhouse, and to points where they were to be repaired. He was also required to station the engines at their proper positions, when they were assigned to pull trains over the road, and to replenish them from time to time with fuel and other supplies. On the night of February 23, 1924, plaintiff was directed by his foreman to get switch engine No. 3746, an oil-burning locomotive, in readiness for work by midnight. He found the engine standing just outside of the roundhouse, near the water and oil cranes. The oil tank on this engine was built in the tender, in the space where coal had formerly been stored for fuel. Its dimensions were given as 4 feet in width and 8 feet in length, and it extended about 1½ feet above the top of the tender. The surface of the tank was level.

It appears that there was no light upon, and, in fact, no means afforded for lighting, the top of the reservoir on this engine, in consequence of which plaintiff carried a lantern in his hand as he went about his task of measuring the amount of fuel in the tank. He had never been upon the top of this particular locomotive until on the occasion in question. Plaintiff had completed his measurements, when he discovered that the surface of the tank was covered with fuel oil of a dark color, which blended with the black paint upon the tank. As he turned to pick up his lantern, his feet slipped upon the oily surface, causing him to lose his balance and fall from the tank down to the concrete base of the water crane, 10 or 12 feet beneath. The greasy and dirty condition of the top of the oil reservoir was still apparent when an inspection of the engine was made on the following day.

Plaintiff had been doing work of this character for defendant for a month preceding the time when his injury was received, and had worked around locomotive engines in general for six years prior thereto. Upon the question of whether the employment was interstate, or only intrastate, the evidence showed no more than that this particular locomotive had been pulled up to the cranes from a day's work in the yards, and that it was assigned to the duty of switching cars in the St. Louis yards of the Terminal Railroad Association.

As plaintiff fell, he struck the concrete in somewhat of a sitting posture, and was rendered unable to arise. His cries brought several men to his assistance, who procured a stretcher and carried him to the storeroom thereon, whence he was conveyed in an ambulance to defendant's hospital. Arriving there, he was given a hypodermic injection of morphine at the direction of the physicians in charge, and was then placed in a Brad-ford frame, consisting of canvas stretched between two bars, with an opening left therein for the hips. He lay in this frame for seven weeks, suffering intense pain all the while. When his recovery became such as to permit him to arise, he was taken to his home in an automobile, but was required to report back to the hospital every week or so during the next six months for attention. He walked with the assistance of a cane for eight months after leaving the hospital.

Plaintiff testified that since his injury he had not been physically able to perform the duties ordinarily required of a railroad hostler; that he experienced continuous pains, extending from the small of his neck down into his legs; that the right leg at times became numb and cold; that during the night he was frequently awakened with cramping in the muscles of his legs; that he had been rendered nervous and irritable; and that he was unable to do any sort of work which required lifting or stooping. There was expert evidence that plaintiff's ailment was properly diagnosed as sciatica, or sciatic rheumatism, and that the same was the result of injury, and was a permanent condition.

The doctor who testified for defendant, while disagreeing that plaintiff's sciatic trouble was traumatic in origin, admitted that sciatic rheumatism could be produced by a fall such as plaintiff received. This doctor, who incidentally had treated plaintiff when he was brought to the hospital, stated that plaintiff had sustained a right sacro-iliac sprain, with severe paralysis of the lower right back, and that he suffered a great deal of pain. It was shown that at the time plaintiff was injured he was earning $120 a month, and that for a period of 14 months subsequent to the time his injury was sustained he was unable to do any work at all. Thereafter he was employed for 3 months as a teamster, earning $3.50 a day, and at the time of the trial he had been engaged in light work at an ice plant for one month, at a salary of $30 a week.

The first point urged by defendant is that the court erred in refusing to give the peremptory instruction in the nature of a demurrer to the evidence, requested by defendant at the close of the whole case, for the alleged reason that it conclusively appeared from the...