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

• Decision Date: 08 November 1927
• Citation: 298 S.W. 1069,220 Mo.App. 1229
• Parties: JOHN T. HILDERBRAND, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

298 S.W. 1069

220 Mo.App. 1229

JOHN T. HILDERBRAND, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.

Court of Appeals of Missouri, St. Louis

November 8, 1927

Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.

Judgment affirmed.

E. T Miller, A. P. Stewart and A. E. L. Gardner for appellant.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested bye defendant at the close of the whole case should have been given. Plaintiff admitted knowledge of the material conditions, the presence of oil on top of the tank, and hence he assumed the risk, even though such risk may have grown out of the master's negligence. Pryor v. Williams, 254 U.S. 43; Seaboard Air Line v. Horton, 233 U.S. 492; Boldt v Railroad, 245 U.S. 441; Jacobs v. Railroad, 241 U.S. 229; Chesapeake, etc., R. Co. v. Proffitt, 241 U.S. 462; Morris v. Pryor, 272 Mo. 350; Louisville, etc., R. Co. v. Wright (Ky.), 185 S.W. 861; Kansas City Southern R. Co. v. Livesay (Ark.), 177 S.W. 875; Schaff v. Hendrich (Tex.), 207 S.W. 543; Davis v. Railway (Ky.), 179 S.W. 422; Barrett v. Railway, 244 F. 397; Gulf, etc., R. Co. v. Drennan (Tex.), 204 S.W. 691; Delaware, etc., R. Co. v. Tomasco, 256 F. 14. (2) Plaintiff requested no instruction outlining his theory of the case upon which recovery was sought. This practice has been repeatedly condemned. Eversole v. Railroad, 249 Mo. 523; Powell v. Railroad, 255 Mo. 420; Wingfield v. Railroad, 257 Mo. 347. The only instruction requested by plaintiff was one on the measure of damages, which was given by the court; and that instruction is erroneous in that it authorized the jury, if they found for plaintiff, to allow him damages for physical injuries and injury to his nervous system as they might find he had sustained as a "direct result of defendant's negligence, if any," without limiting the finding of the jury as to negligence to the negligence which was pleaded in the petition and which found support in the evidence. The instruction as given constituted a roving commission to the jury to find defendant guilty of any negligence. Black v. Railway, 217 Mo. 672; Miller v. Railway, 155 Mo.App. 528; Martin v. Railroad, 175 Mo.App. 464. (3) The verdict is grossly excessive for the actual injuries sustained. DeCourcy v. Const. Co., 140 Mo.App. 169; Harris v. Railway, 168 Mo.App. 336; Welborn v. Railway, 170 Mo.App. 351; Chambers v. Hines, 208 Mo.App. 222; Lattimore v. Lt. & P. Co., 128 Mo.App. 37; Brown v. St. Joseph, 184 Mo.App. 667; Winkleblack v. Mfg. Co., 187 S.W. 95; Lundahl v. Kansas City, 209 S.W. 564; Findley v. Wells, 260 S.W. 506, 507; Tanner v. Railway, 258 S.W. 730, 731; Lebrecht v. Railways, 237 S.W. 112; James v. Railways, 236 S.W. 1089.

Ralph & Baxter for respondent.

(1) The petition stated a cause of action. Schuh v. Foundry Co., 241 S.W. 641; Stephens v. Railway Co., 62 Mo. 207. (2) It is part of the master's duty to use ordinary care to furnish the employee a place to work reasonably safe as the nature of the employment permits, and not to expose him to any unknown risks not ordinarily incident to the service. Dayharsh v. Railroad Co., 103 Mo. 570. (3) Unless the danger or risk occasioned by the master's negligence is so glaring and obviously apparent to the servant as to threaten immediate and almost certain danger, then the servant neither assumes the risk nor can he be held guilty of contributory negligence as a matter of law. Hunter v. Busy Bee Candy Co., 307 Mo. 666. (4) Unless the danger was so apparent that no reasonably prudent man would think the work could be done safely, he should not be refused recovery. Bowman v. Light Co., 213 S.W. 161; Thorpe v. Railway Co., 89 Mo. 650. (5) The servant only assumes risks ordinarily incident to and inherent in the work itself. Haviland v. Railway Co., 172 Mo. 112. (6) The servant does not assume risks that are caused by the master's negligence. Williams v. Pryor, 272 Mo. 613. (7) Assumption of risk under the Federal Employer's Liability Act to be available as a defense must be pleaded. Adams v. Railroad, 287 Mo. 535. (8) Under the Federal Employer's Liability Act, contributory negligence is not a defense even though plaintiff was guilty of contributory negligence. Crecelius v. Railway Co., 284 Mo. 26. (9) The case was tried on the theory of common-law negligence, by plaintiff and defendant. The theory adopted in the trial court cannot be changed in the appellate court. Thompson v. Construction Co., 295 S.W. 491; Rositsky v. Burnes, 295 S.W. 491. (10) The appellant concedes respondent was entitled to recover on cause of action pleaded, unless his injury was the result of some other cause or mere accident. Appellant's instruction No. 2, supra. (11) Plaintiff's instruction on the measure of damages is in proper form. (12) Nondirection is not error. Johannes v. Becht Laundry Co., 272 S.W. 379; Hunter v. McElhaney, 48 Mo.App. 234; Powell v. Railroad, 255 Mo. 456. (13) If the plaintiff wanted an issue presented to the jury, he was to blame for not doing so. Powell v. Railroad, 255 Mo. 460. In the instant case defendant presented the issue in its Instructions 1 and 2. (14) The award of damages was modest and falls far short of being excessive. Linton v. St. Louis Lightning Rod Co., 285 S.W. 183; Stein v. Rainey, 286 S.W. 53; Rose v. St. Louis-San Francisco Ry. Co., 289 S.W. 913; Stoneham v. Davis, 280 S.W. 45; Gould v. C. B. & Q. R. R., 290 S.W. 135.

BENNICK, C. Daues, P. J., Becker and Nipper, JJ., concur.

OPINION

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 $ 7000, 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 four feet in width, and eight feet in length, and it extended about one and one-half 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, ten or twelve 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...