Hinton v. Chicago & G. W. H. Co.

• Decision Date: 11 November 1918
• Docket Number: No. 11956.,11956.
• Court: Missouri Court of Appeals
• Parties: HINTON v. CHICAGO & G. W. H. CO.

206 S.W. 396

HINTON v. CHICAGO & G. W. H. CO.

No. 11956.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer; Judge.

"Not to be officially published."

Action by Wyley Hinton against the Chicago & Great Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mytton & Parkinson, of St. Joseph, for appellant.

R. A. Brown, of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff was engaged in defendant's service as a fireman on one of fits locomotives. He was injured while performing his duties, and brought this action under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) for damages grounded on alleged negligence. He recovered judgment in the trial court.

The injury came about from an attempt by plaintiff to shake the grates in the fire box of the engine. There were iron rods connected with the grates under the floor of the cab of the engine, and they connected with an iron post so constructed that it stuck up through and several inches above the floor of the cab. An iron bar about four feet long, called the shaker bar, had a contrivance, or socket, on the lower end, and this fitted over the upright post sticking through the floor; so that when it is placed over the upright post it forms a leverage whereby, on being moved backwards and forwards, it shakes the grates and clears them of ashes and cinders.

There was a piece of sheet iron of sufficient width to form a bridge or apron between the engine and tender when coupled together. In order that this sheet-iron apron should be on a level between the tender and the engine, the former should be of such size and height as to hold a 6,000-gllon tank, whereas the tender in question has a tank holding 8,000 gallons; the consequence being that the floor of the tender was several inches higher than the floor of the cab of the engine, causing the connecting apron to slant down towards the floor of the cab. When plaintiff took his position to shake the grates, he was compelled to stand with one foot on this slanting apron.

When in proper repair, the post and connections beneath the floor of the cab were such that the shaker bar when placed upon it, as above described, would stand perpendicular, and, when in operation and being pulled toward the body of the operator, it would not be brought back at such an angle or slant as to pull off of the lower post. But the lower post and connections were not in repair. There was testimony tending to show that "the rods and post had too much play," the effect of which was to permit the shaker bar to be pulled back till it reached a point where the force applied by the operator would pull it off the lower post. In proper repair, plaintiff testified that he thought the top of the shaker bar could not be pulled out of perpendicular toward him more than 12 inches, and that the top of the post at the point of connection with the bottom of the shaker bar, he thought, would only be pulled over 3 or 4 inches.

At this part of the case, defendant claims that plaintiff testified to facts which disclose a physical impossibility for the bar to have been pulled off the post in the manner stated by plaintiff, and that therefore he is deprived of the right to recover. We think it clear that defendant has misunderstood the meaning of the testimony. Some confusion exists from the fact that the words "shaker post" and "shaker bar" are used interchangeably as applying to the post sticking up through the floor of the engine cab and the bar, 4 feet in length, the lower end of which fitted over the post. To avoid this we have called the one sticking up through the floor the "post," and the one used as the lever to work backward and forward the "bar." As we understand the witness, he stated that on account of improper or worn connections the post had "too much play," and that thereby the top of the bar would pull backward several inches more than normal (which was stated to be 12 inches), and that by reason of this defect the bar would approach to near a horizontal position and thus pull off of the post and cause the operator to fall. We think that plaintiff did not intend to state, and did not state, that the bar pulled off the post when he had only pulled the top or upper end toward him 3 or 4 inches. He may have thought the post down next to the floor had been pulled over 3 or 4 inches. Necessarily he had not measured it, and if he was mistaken as to the distance it was of no consequence, so long as the effect followed. The main facts influencing his right to recover are plain and simple and are amply supported by evidence. Plaintiff, hampered to some degree by the slanting apron, attempted to shake the grates with the implements which defendant provided for that purpose. The connections at and under the floor were loose and unstable, and, when he connected the post with the bar by slipping the lower part of the latter over the top of the former and pulled it back, it came too far, pulled off, threw him upon the floor with the disconnected bar in his hands across his breast, and the engineer picked him up. He was injured and taken to defendant's...