Holloway v. Missouri, Kansas & Texas Railroad Company

• Decision Date: 30 December 1918
• Citation: 208 S.W. 27,276 Mo. 490
• Parties: F. W. HOLLOWAY v. MISSOURI, KANSAS & TEXAS RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

208 S.W. 27

276 Mo. 490

F. W. HOLLOWAY v. MISSOURI, KANSAS & TEXAS RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

December 30, 1918

Appeal from Henry Circuit Court. -- Hon. C. A. Calvird, Judge.

Affirmed.

J. A Galbreath, Peyton A. Parks, W. E. Owen, and Jos. W. Jamison for appellant.

(1) Plaintiff's petition alleges that in the space between defendant's main-line track and passing track there was a piece of rock ballast covered up and hidden from view by fine chat ballast. That when plaintiff undertook to mount a car as it came by where he was, the chats and ballast "gave way under plaintiff's left foot on account of the bowlder and rocks just beneath the fine chat which had been sprinkled over them, which caused his foot to turn in under him and slide down the embankment while in the act of taking hold of the grab-iron of the car," etc. Plaintiff's own testimony shows that it was the turning of his foot on a single piece of ballast beneath the chat, through which his foot sank, as he attempted to board the car, that was the proximate cause of his injuries. His petition states no cause of action, and he offered no evidence proving or tending to prove actionable negligence. It was not alleged in the petition that it was not reasonably necessary for defendant to construct its passing track on a lower grade than the main line track. There was no evidence offered tending to show that defendant knew, or by the exercise of reasonable inspection, might have discovered that the piece of rock ballast, which was covered with a layer of chat, and on which plaintiff's foot turned, causing him to fall, was lying in such position that it might cause such an accident if perchance a trainman in the performance of his duties, might place his foot upon the fine chats above said heavier piece of ballast. Plaintiff testified that the piece of rock on which his foot turned was concealed beneath a layer of chat so it could not be seen, and that his foot sank down through the chat as it came in contact with the ballast. Morris v. Pryor, 198 S.W. 817; Kane v. Railway Co., 251 Mo. 45; Current v. Ry. Co., 86 Mo. 66; Williams v. Ry. Co., 119 Mo. 324; Newlin v. Ry Co., 222 Mo. 375. (2) The question as to the proper construction of defendant's main line and passing track at Calhoun, all physical conditions being considered, was an engineering question. Tuttle v. Milwaukee Ry., 122 U.S. 189; Potomac F. & P. R. Co. v. Chichester, 68 S. E. (Va.) 404.

Wilkerson & Barnett and Sizer & Gardner for respondent.

(1) The court did not err in setting aside the involuntary non-suit and in granting plaintiff a new trial. Stauffer v. Railroad, 243 Mo. 316. The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury might fairly draw from that testimony. Forced and violent inferences he does not attempt, but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw, the court ought to draw. Pawling v. United States, 4 Cranch. 219; Pleasants v. Fant, 89 U.S. (22 Wall.) 121; Turner v. Anderson, 260 Mo. 17; Williams v. Railroad, 257 Mo. 112. If the action of the trial court in setting aside the nonsuit and granting a new trial (which is the same as overruling the demurrer to the evidence in the first place) was right for any reason, the action of the trial court will be sustained. Clarkson v. Garvey, 179 Mo.App. 9; State ex rel. Hartman v. Thomas, 245 Mo. 65. (2) The burden of appellant's contention is that the testimony failed to show that defendant company knew or by the exercise of ordinary care could have known that the boulders were underneath the chats at the place in question. It should be kept in mind that the defects alleged were structural defects; i. e., defects in the roadbed itself. This was defendant's own roadbed, constructed and built by the defendant and kept and maintained by it, and having been built and constructed by the defendant itself, defendant is charged in law with full notice and knowledge of the manner of its construction and of the materials placed therein. Cabanne v. St Louis Car Co., 178 Mo.App. 725; Cody v. Lusk et al., 187 Mo.App. 337; Tatman v. Railway, 96 Mo.App. 448; Young v. Shickle, H. & H. Iron Co., 103 Mo. 328. (3) Defendant owed the plaintiff the duty to use reasonable care to keep the roadbed and ways in reasonably safe condition, and what constitutes reasonable care must depend upon the surroundings and the dangers to be fairly apprehended and encountered. 26 Cyc. 1125; Hall v. Mo. Pac. Ry. Co., 18 S.W. 426; Rifley v. Minneapolis & St. R. Co., 72 Minn. 469. Maintaining a soft, spongy and springy roadbed will justify a jury in finding such action to be negligence. Baker v. Great Northern, 83 Minn. 184; Culver v. South Haven Ry. Co., 138 Mich. 443; Hollenbeck v. Mo. Pac. Ry. Co., 141 Mo. 97; Swadley v. Mo. Pacific, 118 Mo. 269. (4) The question of assumption of risk by the plaintiff was one for the jury. The duty imposed is to use reasonable care and diligence to furnish safe tracks for its employees, and the plaintiff has a right to assume that this has been done. Lake Erie etc. Co. v. Morrissen, 177 Ill. 376; Hach v. St. Louis etc. R. Co., 208 Mo. 581. Where a brakeman is injured by reason of rotten and defective ties, such a condition of the roadbed constitutes negligence. Chesapeake & N. R. Co. v. Venable, 111 Ky. 41; McFee v. Vicksburg S. & P. R. Co., 42 La. Ann. 790; Gulf Ry. Co. v. Pettis, 69 Tex. 689; Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U.S. 310. An employee does not assume a risk unless it was apparent to him at the time and the danger was fully appreciated. And he has a right to assume that the master has furnished him a reasonably safe place to work, and the danger must be so glaring and thereatening that an ordinarily prudent man would not have attempted the work in hand. Hurst v. K. C., etc. Co., 163 Mo. 309; Franklin v. M., K. & T., 97 Mo.App. 473; Huhn v. Mo. Pac., 92 Mo. 440; Soeder v. Railroad Co., 100 Mo. 673.

BROWN, C. Graves, J., concurs in result. WOODSON, J., dissenting.

OPINION

BROWN, C. --

This is a suit for personal injuries received by plaintiff on March 2, 1914, while in the employment of defendant as brakeman and assisting in the operation of a local freight train on defendant's railway, running from the city of Nevada, Missouri, to the city of Sedalia, Missouri. The injury was the result of falling from a car which he was attempting to board while in motion. He was thrown beneath the car, the wheel of which passed over and injured his right leg, so that it was necessarily amputated above the knee. The train was at the time engaged in the transportation of interstate freight and the suit is expressly founded upon the Federal Employers' Liability Act. The petition, which was filed in the Henry County Circuit Court August 6, 1914, returnable to the next September term, states that "defendant owed to plaintiff the duty to exercise ordinary care to furnish plaintiff with a reasonably safe place to work, and further owed plaintiff the duty to exercise ordinary care to see that its track and roadbed and ways and means of transportation were reasonably safe for plaintiff to perform his duties; that defendant owed plaintiff the further duty to keep its passing tracks and its main line tracks on the same level or grade, as was the custom at other places upon its own road, and as was the custom of other railroads in the State of Missouri, and to keep the spaces properly ballasted and in reasonably safe condition; that on account of the failure of the defendant to perform its duties in these respects, plaintiff was injured."

It then charges the failure to perform such duty as follows:

"(1) That the train which the defendant was then and there operating was negligently overloaded as to cars and tonnage, considering the engine and the heavy grades of the defendant's tracks from the water tank where said train was compelled to stop for water, and the station where said train had to go on to the passing track to clear the main line, which overloading necessitated the dangerous practice of making a run for heavy grade between the tank and the station; and on account of such negligence plaintiff was required to go ahead of said train to open the switch and to mount said train while it was making a run for said grade.

"(2) That the defendant was further negligent, in whole or in part, by keeping and maintaining the space between the main line and passing track in a defective condition, and not in a reasonably safe condition for plaintiff to perform his duties, in that said space was steep and sloping from top of ties on main line to end of ties on passing track, and not on the same level or grade as the main line, and the sloping space covered with fine chat ballast over large and rough rock ballast, deceptive and hidden from plaintiff's view while attempting to walk on said space and to use same in mounting car.

"(3) That the ties of the passing track were rotten, old and defective, and the joints of rails uneven and low, and spikes in ties were loose and rails uneven and unsupported by rotten and defective ties, so that the cars when passing over same would sway and rock violently, thereby making said passing track not reasonably safe."

"That the defects and dangers as aforesaid were known to the defendant, its officers, agents and employees, or by the exercise of ordinary care could have been known in time to have avoided injury to plaintiff; that said acts of negligence, acting separately or conjointly with each other, caused the injury to plaintiff, as aforesaid, to his damage in the sum of $ 30,000."

Appellant answered by general denial, with pleas of...