Hoffman v. Missouri Pac. R. Co.

• Decision Date: 03 October 1933
• Docket Number: No. 22717.,22717.
• Citation: 63 S.W.2d 427
• Parties: HOFFMAN v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

63 S.W.2d 427

HOFFMAN v. MISSOURI PAC. R. CO.

No. 22717.

St. Louis Court of Appeals. Missouri.

October 3, 1933.

Appeal from Circuit Court, St. Francois County; Barton H. Boyer, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Oscar M. Hoffman, claimant for injuries, opposed by the Missouri Pacific Railroad Company, employer and self-insurer. From a judgment of the circuit court reversing an award of the commission denying compensation, employer and self-insurer appeals.

Reversed and remanded, with directions.

Dearmont, Spradling & Dalton, of Cape Girardeau, for appellant.

BENNICK, Commissioner.

This is a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929; Mo. St. Ann. §§ 3299-3376), the appeal being by the employer and self-insurer, Missouri Pacific Railroad Company, from the judgment and decision of the circuit court of St. Francois county, reversing an award of the commission in its favor.

Oscar M. Hoffman of Poplar Bluff, Mo., is the employee, and it is conceded that at and prior to the day of the accident he was in the general service of the employer as a water service repairman, and that he sustained the injury for which he seeks compensation, the same being the loss of his left arm when he was run over by one of the employer's freight trains at Bismarck, Mo., on July 17, 1931.

The controverted point at the hearing before the commission was whether the injury was by accident arising out of and in the course of the employment. The finding of the commission was in favor of the employer and against the employee; and the latter's appeal was taken to the circuit court by the usual steps. In the circuit court the award of the commission was reversed upon the ground that there was not sufficient competent evidence in the record to warrant it; and, from the judgment so entered the employer's appeal to this court has followed.

The propriety of the entry by the circuit court of its judgment of reversal upon the ground stated is the sole point involved on this appeal.

Hoffman's own evidence was that on the day in question he had been engaged in laying a water line in front of the employer's station, and that at about 9 o'clock at night he began work on the chemical pump which he chanced to find in need of repairs. This was a pump employed for the purification of water used on the trains, and it was located about three hundred feet north of the station on the west side of the tracks which run generally north and south through Bismarck.

At 11 o'clock, though his work on the pump was not yet finished, Hoffman left the pumphouse temporarily, and crossed over to the depot to see if any orders had been left for him from his foreman, whose headquarters were at Poplar Bluff. It appears that routine messages were customarily sent up from Poplar Bluff on north-bound trains, and, when delivered at Bismarck, were put in a box for Hoffman, the box being located in the trainmen's room in the depot.

Finding no message, Hoffman started back to the pumphouse, walking north alongside the tracks until he reached the point where it was convenient for him to cross. A south-bound through freight was passing, and he stood on the platform some three or four feet from the track, waiting for the train to go by so he could cross over to his destination. While he was standing in such position, a number of men suddenly ran out to catch the train, one of whom collided with Hoffman, toppling him over underneath the wheels, where his left arm was severed at the shoulder.

Such was Hoffman's own account of the accident, which evidently was not believed by the commission, in view of its finding that the injury was not by accident arising out of and in the course of his employment.

Conceding that it was Hoffman's duty to make both minor and emergency repairs to water equipment without waiting for express authorization from his superiors, the evidence for the employer nevertheless served to cast great doubt upon the truth of Hoffman's version of the accident in numerous vital particulars. For instance, the man regularly in charge of the pump testified that, when he left it at 7 o'clock in the evening, it was working, and that there was nothing wrong with it to be repaired. Other employees who were on night duty at the depot testified that they had not seen Hoffman around the station or at his box in the trainmen's room; that he had not been seen around the pumphouse; that the lights in the pumphouse had not been burning during the evening; and that no strangers had been seen loitering around the station, or in the vicinity of the train as it passed through the town.

But most damaging of all to Hoffman's case was the testimony of Mr. and Mrs. C. Q. Walker, the proprietors of a rooming house which stood on the west side of the tracks, just across the street from the water tank. The substance of their testimony was that Hoffman came into their rooming house about 11:20 at night, the time...