Huffman v. Terminal R. Ass'n of St. Louis

Decision Date11 July 1955
Docket NumberNo. 44492,No. 1,44492,1
Citation281 S.W.2d 863
PartiesJames C. HUFFMAN (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Appellant
CourtMissouri Supreme Court

Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.

Haley, Fredrickson & Caruthers, Rexford H. Caruthers, St. Louis, for respondent.

VAN OSDOL, Commissioner.

This is an appeal from a $20,000 judgment rendered in plaintiff's action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for personal injuries allegedly sustained by plaintiff when he slipped and fell in the oily, slick area north of No. 1 interchange track in the Roselake Yard of the Pennsylvania Railroad Company in Illinois. At the time of his injury, plaintiff, a member of a switch crew in the employ of defendant Terminal Railroad Association of St. Louis, was engaged in the movement and delivery or interchange of a 'cut' or train of cars from defendant's Central District Yard in East St. Louis to the Pennsylvania's Roselake Yard. Plaintiff's claim is based on the alleged failure of defendant to exercise ordinary care to provide plaintiff with a reasonably safe place to work.

Herein defendant-appellant contends the trial court erred in submitting plaintiff's case to the jury; in instructing the jury; in the admission and exclusion of evidence; and in permitting improper cross-examination of a witness for defendant.

There was evidence introduced tending to show that in the Roselake Yard there are three east-west interchange tracks numbered 1, 2, and 3, from south to north. Three or four car lengths to the westward of the easterly end of interchange track No. 1 there is a small wooden boardwalk, sometimes called a bridge, consisting of wedgeshaped pieces of wood laid against the rails in such a way as to make a ramp for the easy passage (over the rails) of wheelbarrows loaded with tools. It is usual for defendant's switch crews when moving trains or cuts of cars to the three interchange tracks to complete the interchange movement a short distance west of the small wooden bridge. There the switch engine is usually detached from the train, and the foreman of the switch crew walks eastwardly a few hundred feet to deliver his 'bills' to the yardmaster, and to get instructions from a dispatcher as to the track the switch engine (and caboose) may pass over in returning to defendant's Central District Yard. The Pennsylvania's switchstand No. 8 is some ten or twelve feet to the southeastward of the small wooden bridge. When a cut of cars is set on an interchange track, the journal boxes of each car of the train are oiled by employees of the Pennsylvania. The oiling of journal boxes of cars on these interchange tracks west of switchstand No. 8 and the small wooden bridge has been going on for years, and drippings of oil have fallen on the ground along and between the interchange tracks west of the small wooden bridge so that the area has become oil-soaked and slippery. This is the general condition from and west of switchstand No. 8 and the small wooden bridge, and for several hundred feet to the westward. There was evidence tending to show that east of the small wooden bridge there is no oily or slippery condition. A witness said it is oily west of No. 8 switchstand and the small wooden bridge with 'an inch to an inch and a half top surface of oil.' By this we understand the witness meant the ground has become soaked with oil to an inch or an inch and half in depth. The ground is also 'bumpy.' There was evidence tending to show that this condition had obtained for several years prior to the time when plaintiff was injured.

Plaintiff testified that he, the head man of a switch crew, had assisted in the movement of a cut of cars over to the No. 1 (the south) interchange track. The train had been stopped with the engine two or three car lengths west of the small wooden bridge. The engine was then disengaged from the train; moved forward (eastwardly) four to six feet; was there brought to a stop; and the foreman had gone eastwardly to attend to his 'bills,' and for instructions relating to the further movement of the switch engine. It was nighttime--about eleven-thirty--and there was no artificial light at that place in the Roselake Yard. When the engine was stopped its headlight had been turned off in compliance with an operating rule. After the foreman had been gone fifteen or twenty minutes, plaintiff saw him returning and giving a signal to 'come ahead.' The foreman's signal was not observed by the engineer of the switch engine.

Plaintiff testified, 'Well, the foreman kept giving signals, so I thought, well I better go back there and holler at him (the engineer), tell him to come on out of the track. * * * So, I was sitting on the pilot beam and I scooted off the pilot beam down with both feet on the footboard. * * * I started to step off the engine and we have what is known as a grab iron, grab rail, to hold to. I lit my lantern--that is an electric lantern--and took my left hand to hold the grab rail and stepped down on the ground. As I started, as I stepped on the ground I made a turn (to the left) towards the back of the engine, and when I stepped the other foot down, why I stepped on something that was greasy, was slick. I started stumbling and falling backwards. I fell into something along right just at the side of the engine, the front side of the engine and I cut a place between my shoulders. When I would up falling I was lying across the (north) rail in front of the engine, about halfway inside the track and half out.' There was evidence introduced by plaintiff tending to show that he sustained serious injury.

Defendant developed evidence tending to show that, if plaintiff fell, his injuries were but trivial; and that, if plaintiff fell, it was at some point east of the small wooden bridge and switchstand No. 8, where the ground was not saturated with oil. Defendant also introduced evidence tending to show that plaintiff's condition of disability was not due to trauma or physical injury as a result of his falling, but that plaintiff's condition was due to disease, syphilis, which had progressed to its third or tertiary degree--that is, tabes dorsalis, locomotor ataxia. Defendant also introduced evidence in impeachment. There was evidence that plaintiff had thrice been convicted of crime, one of which convictions was on a Federal charge. While serving this time, plaintiff was transferred (in 1937) to the United States Medical Center at Springfield; and the records of that institution disclose that plaintiff's condition was there diagnosed (in 1939) as 'syphilis, tertiary, central nervous system.'

As we have stated, plaintiff testified he stepped from the engine down 'on the ground.' At another place in his testimony he said he did not see what it was he stepped on and slipped; again he said he may or may not have stepped on a tie; and again he said he stepped on something higher than the ground, although he said he stepped on something slick. As will be noted infra, plaintiff, in his verdict-directing Instruction No. 1, hypothesized that plaintiff stepped 'onto the ground,' and that the ground 'was oily, slick and not lighted.' Defendant-appellant argues plaintiff's evidence forces the conclusion that plaintiff stepped down on a tie or some object other than the 'ground' and there was no allegation or proof that any tie or other substance than the ground was oily and slick, so that the failure of plaintiff to definitely and unequivocally say he stepped and slipped on the 'ground' as submitted was fatal, being a failure of proof of the fact as hypothesized in the instruction. But, as stated, plaintiff said he stepped on something slick; and we think the 'ground' as submitted in the instruction should be reasonably considered as the area north of interchange track No. 1 where plaintiff stepped down, the 'bumpy' slick surface of which area was comprised, it may be inferred, of ties extending from beneath the rails as well as cinders, gravel or earth. It seems that otherwise than above stated, defendant-appellant does not contend plaintiff failed to make out a case (as submitted) by his own testimony, if his testimony supporting his case was worthy of belief.

Having examined the evidence tending to support plaintiff's case as submitted, we are of the opinion there were substantial bases for the inferences that the area between interchange tracks Nos. 1 and 2 and west of the small wooden bridge and switchstand No. 8 was oily, slick and not lighted, and not reasonably safe for employees to step and walk upon. This was a place, the evidence shows, where employees usually completed interchange switching movements with necessarily incidental use of the area for stepping and walking upon in uncoupling, and moving switch engines from trains. The oily, slick condition had existed for years so that defendant, in the exercise of ordinary care, could have remedied the unsafe condition. And we believe we cannot say as a matter of law that the fact that the area was not lighted did not have its substantial part in rendering the place unsafe and in proximately causing plaintiff's fall and injury. The testimony of but a single witness, plaintiff, was substantial evidence tending to show that he, in attempting to relay or communicate the foreman's signal to the engineer stepped down on something slick in the unlighted area and was caused to slip and fall and was injured.

Defendant-appellant has devoted several pages of its brief in an endeavor to demonstrate that plaintiff's testimony was so manifestly false, so 'entirely beyond reason' and unbelievable that it was wholly insufficient in probative value to make out a prima facie case. It is pointed out that plaintiff had made varying and inconsistent statements about his age and...

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    ...case, so that an answer of assistance to the jury in proper determination of the case may be elicited. Huffman v. Terminal R.R. Ass'n of St. Louis, 281 S.W.2d 863, 870(9) (Mo.1955); Hunter v. St. Louis Southwestern R. Co., 315 S.W.2d 689, 696(6) (Mo.1958); Gavan v. H. D. Tousley Co., 395 S.......
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