Holman v. St. Louis-San Francisco Railway Company

• Decision Date: 06 January 1926
• Docket Number: 25132
• Parties: D. E. HOLMAN, Administrator of Estate of ELMER E. REAVES, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

278 S.W. 1000

312 Mo. 342

D. E. HOLMAN, Administrator of Estate of ELMER E. REAVES, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

No. 25132

Supreme Court of Missouri

January 6, 1926

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Affirmed.

E T. Miller, Herman Pufahl and Mann & Mann for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence. Plaintiff's right to recover in this case is based entirely upon the theory that defendant's foreman, Barker, had knowledge actual or constructive, that deceased was working on the car after five o'clock, the regular quitting time. Plaintiff is not entitled to recover, absent notice, merely because the accident occurred so shortly after five o'clock. The testimony clearly shows that during all the time that deceased had worked in this yard it had been the uniform custom to remove the flag and unlock the switch at five o'clock. It had also been the custom for engines to move cars in upon this track immediately following the unlocking of the switch and removal of the flag. Lake knew of this custom. Deceased is charged with knowledge of it. The only exception to that rule of unlocking the switch and removing the flag at five o'clock was when some of the men worked overtime, either by request of the foreman or after notifying the foreman of their intention so to do. So the ruling on this demurrer and the right of plaintiff to recover depends entirely upon whether there is testimony from which the jury could find that the foreman, Barker, knew that deceased would remain working on the car after the whistle blew. The testimony clearly shows that what Lake told the foreman was that they would finish the car. Nothing was said about their working overtime and the only reasonable inference from his statement to the foreman was that they would finish it by quitting time, five o'clock. The fact that the foreman took up the card and went away, not expecting to return conclusively shows that he did not know that repairs were necessary on the brake hanger at the opposite end of the car and that he had no reason to believe that after finishing the work on the sleeve bolt these men would remain to do any other work about the car. (a) If this record discloses knowledge to defendant that it might take deceased until a few minutes after five to complete the work on the sleeve bolt at the west end of the car, it does not follow that the defendant was guilty of negligence in permitting the car to be moved, under the facts in this case, for the reason that deceased was not working on the west end of the car and was therefore not at the place where, by reason of his presence, had he been at the west end of the car, it would have been negligence to have permitted the car to be moved. (b) A duty to protect one in a particular position or place does not extend to a person in an entirely different position or place. Degonia v. Railroad, 224 Mo. 594; Mansfield v. Wagner Electric Manufacturing Co., 242 S.W. 400; Butz v. Cavanaugh, 137 Mo. 503; Chicago Railroad v. Minneapolis Railroad, 176 F. 241. (c) Deceased assumed the risk of injury. The doctrine of assumption of risk as recognized and applied in the Federal courts, and by the courts of this State in cases falling under the Federal Employers' Liability Act, governs this case. The deceased knew of the uniform custom to remove the flag and special switch lock at five o'clock; he knew that immediately after the removal of these safeguards it was the custom for the switch engine to come in on these tracks and move the cars; he knew that if he worked after five o'clock he would be working without any protection against this switch engine; he knew that the work he was engaged in doing was not noted on the card, and, therefore, even though that work may have been necessary, his foreman had not directed it to be done and did not know that he would be engaged in this work after the regular quitting time. When an employee, knowing the rules and customs with reference to safeguarding him, disregards them and puts himself in a position of danger when he knows he is not protected by the safeguards, he assumes the risk of such an injury. Seaboard Air Line v. Horton, 233 U.S. 492, 58 L.Ed. 1062; Morris v. Pryor, 272 Mo. 350; Emery v. Railroad, 246 S.W. 337; Pope v. Railroad, 254 S.W. 43; See v. Railroad, 228 S.W. 518. There was both a safe and an unsafe method of doing this work. The safe method was, therefore, notifying the foreman of his intention to repair the brake hanger. Deceased chose the unsafe method of going ahead and doing the work without notice to the foreman. In so making the choice of the unsafe method, where a safe one was available, the deceased assumed the risk, defeating recovery in this case. Hunter v. Candy Co., 271 S.W. 805; Moor v. Railway, 146 Mo. 572; Hurst v. Railway, 163 Mo. 309. (2) The instruction on the measure of damages is erroneous in that it permits the plaintiff, for the benefit of the widow and minor children of the deceased, to recover the amount of money which the jury found from the evidence the deceased would probably have contributed to each during their respective minorities. It is not a gross sum of money equal to what deceased would reasonably have contributed, but the present value thereof that plaintiff was entitled to recover. Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 60 L.Ed. 1117; Yarde v. Hines, 238 S.W. 151.

Sizer & Gardner for respondent.

(1) Plaintiff's recovery in this case is not based upon actual knowledge of the foreman that deceased was at the time of his injury, at work between the cars, but, rather, that defendant's foreman "had reasonable cause to believe, and did believe, from all the facts and circumstances, that the deceased would continue his work until said car was completed." (a) The recovery was had rather upon the theory that said foreman had constructive knowledge of deceased's presence, working on the cars, or was in possession of such facts and circumstances as required him to use ordinary care to protect deceased from an incoming locomotive. (b) The foreman wanted the car, and was there inquiring if they would get it out. It appears in evidence that it was the practice of either the foreman or the car inspectors, or some employees other than the car repairers to make a notation on a slip of paper of all repairs needed on a car, and leave the slip of paper at the car for the information of the car repairers. There is nothing to show what this slip of paper on this particular car contained. It appears, however, there was a slip, and that the foreman took this up about ten minutes before the accident. It is a significant fact that the slip was not introduced in evidence by the defendant. It stands undisputed that the brake hanger upon which deceased was working at the time he was killed, was defective and in need of repair. If the inspector who noted the defects in the car performed his duty as we must presume he did, he made a notation on this slip of the brake hanger at the east end of the car, as well as that of the sleeve bolt and taps and nuts in the coupler at the west end of the car. So the natural inference is that, as the foreman was attempting to check up the progress of the work with the slip in hand, he then made inquiry of the workmen whether the brake hanger had been fixed. The foreman was evidently very solicitous of having the car completed, and obtained a promise from Lake, in the presence of deceased, not that they would finish the sleeve bolt and coupler at the west end of the car, but that "we would get the car finished before we quit." (c) The foreman knew that with only ten minutes ahead of them these two workmen were then under the car at the west end, and that when the difficulty they were then having was overcome and the coupler fixed, they would have to pass to the other end of the car and fix the brake hanger, and at his request and solicitation, he had the positive promise of these men that they would finish this car before they quit, and that they might be a few minutes after the whistle blew in doing so. The defendant offered no evidence to relieve itself of blame or explain the reasons why deceased was subjected to these unnecessary hazards. Barker, on whom the blame fell in this case, did not testify. Kame v. Railroad, 254 Mo. 175, 194; Koerner v. St. Louis Car Co., 209 Mo. 159. (2) Actual knowledge of deceased's presence by the foreman not necessary. Kame v. Railroad, 254 Mo. 175; Williams v. Railroad, 175 S.W. 900; Johnson v. Brick & Coal Co., 276 Mo. 50; Reichla v. Gruensfelder, 52 Mo.App. 60; Dawson v. Railroad, 114 F. 872; Wendler v. People's House Furnishing Co., 165 Mo. 527. (3) Deceased did not assume the risks of injury in this case. In fact, there is no assumption of risk in the case. Railroad v. Ward, 252 U.S. 18, 64 L.Ed. 430; Reed v. Director General, 258 U.S. 92, 66 L.Ed. 480. The negligence proximately causing Reaves's death was that of the foreman and his representative, Holcomb, in permitting the locomotive to come in upon track 8 without notice or warning to the deceased. This negligence created a sudden and unexpected danger which the deceased could not have known or appreciated, and the risk of which, of course, the deceased could not assume. While an employee assumes the ordinary risks incident to his employment, he does not assume the risks arising out of the master's negligence (which includes, of course, the negligence of any officer, agent or employee of the master) unless and until such employee knows of such dangers and appreciates the risks arising therefrom, or, unless and until such risks and dangers are so obvious that an ordinarily careful person, under the circumstances...