Johnson v. Missouri-Kansas-Texas R. Co.

• Decision Date: 14 March 1960
• Docket Number: No. 1,MISSOURI-KANSAS-TEXAS,No. 47580,47580,1
• Citation: 334 S.W.2d 41
• Parties: Raymond H. JOHNSON, Respondent, v.RAILROAD COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 41

334 S.W.2d 41

Raymond H. JOHNSON, Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.

No. 47580.

Supreme Court of Missouri, Division No. 1.

March 14, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 11, 1960.

Frank J. Rogers, Kansas City, A. E. Elliott, Nevada, for appellant.

Everett Teel, Nevada, Sylvan Bruner, Pittsburg, Kan., A. C. Popham, Kansas City (Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel), for respondent. Conway, Kansas City, of counsel), for respondent.

HYDE, Presiding Judge.

Action for damages for personal injuries brought under the Federal Employers' Liability Act. 45 U.S.C.A. Secs. 51-59. Verdict and judgment for plaintiff for $45,000 and defendant has appealed.

Defendant contends that plaintiff failed to make a jury case so we will state the facts shown by plaintiff's evidence and consider them from the viewpoint most favorable to him. Plaintiff was a member of a section crew in which there were usually three men with a foreman. One of the men was on vacation on the date of plaintiff's injury and he was working with H. M. Smeithers; Fred Hamilton was the foreman. They were engaged in taking out old ties of the main line track and putting in new ones. In the afternoon, they needed two more ties so rode a motorcar to nearby Kimball, Kansas, to get them. The ties there were near a sidetrack and it was necessary to carry them 14 to 16 feet over a rough chat surface, with small holes in it, to put them on the handles of the motorcar, which had been left on the sidetrack. Ties were usually carried on a flat-bed push car that could be hauled behind a motorcar. When the push car was used, the ties could be taken to the side of the car and pushed onto it, from the side of the track, so that it was not necessary for the men carrying them to step over the rails. However, they did not have the push car on this occasion so it was necessary in placing the ties on the handles of the motorcar, which were across each end, for the men with the tie to step over the rails to get behind the motorcar and lay the ties on its handles; the man holding the front end of the tie had to step over both rails. Larger ties were used for cross ties under the 112-pound rails of the main track, than for sidetracks, and all these ties were of that type. There was conflicting evidence as to the weight of main line ties. Plaintiff and Smeithers, and also his witness, T. W. Norman, testified that in carrying main line ties it was the usual custom and practice to use three men; and, if there were only two crewmen, the foreman would help. They said two men might move ties in the pile or carry a tie a step or two but not 10 or 12 feet. Norman also said he had seen ties used on the main line that weighed as must as 450 pounds.

The only direction the foreman gave them was to load two ties from the pile and he did not assist them but sat on the motorcar. Plaintiff and Smeithers got one tie which they said was average size (which plaintiff estimated as weighing about 260 pounds) and put it on the handles of the motorcar. They then went back to the pile and, according to Smeithers, got 'the next one that was on top there,' which they both said was much larger than the first one, estimating its weight at 300 pounds. Plaintiff said this tie was two or three inches thicker and wider than the average tie, estimating its width and thickness as much as 14 inches by 10 inches. Plaintiff was walking backward, partly stooped over, holding the front end of the tie. Smeithers was following him walking forward holding the other end. The ties were eight feet long. Plaintiff's height was 6 feet, 1 inch, and he weighed 230 pounds; Smeithers was 5 feet 6 inches, and weighed about 170 pounds. Plaintiff stepped over the first rail, crossed the space between the rails and got to the second rail. Plaintiff described what then happened as follows: 'When I stepped over this rail I had my left foot on the ground on the west side of the first rail. I had my right foot in the air ready to step over. Mr. Smeithers, my co-worker, was on the other end and he had his stomach against this tie and was pushing towards me and he shifted this weight by trying to get a better hand hold on this tie--* * * It just threw me in a twist. He was up against it and he was crowding the tie and pushing up against it and when he shifted this tie in trying to get his hands under it, why, it threw me forward and when he did get his hands under it he raised it back up and it jerked towards him and threw me in this twist and bind. * * * Well it all happened when I had one foot cocked over the rail, he pushed toward me and then when he got his hands under it he jerked it back. * * * I went down--I was still hanging onto the tie and I went down and I went to the rail and I put my hands right on it.'

Smeithers said they were both carrying the tie stooped over because the tie was so heavy (he said they both talked about how heavy it was); that he was standing outside the first rail about a foot lower than plaintiff when plaintiff started to step over the second rail; that the tie was slick (it was creosoted) and heavy and he was losing his grip with his right hand so he 'shifted to get a better hold * * * jiggled it around to get another hold,' probably raised it two or three inches. Concerning plaintiff's position, he said: 'He had one leg over the rail. He was standing on one leg, and when I twisted the tie, it twisted him.' He also said he was leaning into the tie in order to keep hold of it and was putting some thrust in the direction of plaintiff.

Defendant's reasons for contending that plaintiff did not make a jury case are: First, that plaintiff and Smeithers were not ordered to load the particular tie, claimed to be unusually large and heavy, but voluntarily selected it instead of one of standard size. Second: That there was no evidence that Smeithers had time or opportunity to warn that he was losing his hold on the tie before shifting his hold but that instead the evidence showed the contrary. Third: That plaintiff's theory that a change of handhold by the shorter man at one end of an eight-foot tie would 'cause heavy, unusual and dangerous weight to suddenly and violently come down' on the taller man supporting the other end is not supported by the evidence and is unbelievable and contrary to physical facts.

As to the first, it is true that plaintiff said of the second tie 'it had been laying on the ground in the chat, it had chat in it'; while Smeithers' testimony was that it was 'the next one on top there' and 'in the natural course of event' was 'the next tie to be picked up.' Smeithers also said, 'We figured we would have to get it some time, so we just took it.' They both said there were only six or eight ties in the pile and plaintiff's evidence did not explain how they were arranged in the pile, whether some on top of others or all on the ground (defendant's evidence indicated they were scattered on the ground); nor was there any evidence as to the size of the remaining ties. Furthermore, they both said they did not know what a standard tie weighed and had never seen one weighed. Plaintiff's estimate of the weight of a standard tie was 260 pounds so that his estimate of the weight of this larger one was not as great in difference as it would be from defendant's evidence as to the weight of a standard tie for 112-pound rails; and defendant's evidence also indicated there would be a variation of size and weight of hewed oak ties such as plaintiff said this one was. Defendant cites Lutgen v. Missouri Pacific R. Co., Mo.App., 294 S.W. 444, 445, and Haviland v. Kansas City, P. & G. R. Co., 172 Mo. 106, 72 S.W. 515, 518, saying that an employee is the judge of his own strength and holding the employer not liable for injuries caused by overexertion. However, as plaintiff points out these cases were decided before the 1939 amendment to the Federal Employers' Liability Act abolishing the defense of assumption of risk. (45 U.S.C.A. Sec. 54; for a recent overexertion case, see Stone v. New York, C. & St. L. R. Co., 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441.) As also pointed out by plaintiff, all of the ties were put there by defendant to be used; and the evidence did not show that the men were expected to choose the ties to be used or had the right to refuse to load any of the ties defendant had furnished for use on its main line track. Defendant also says it is not liable for any injury resulting from plaintiff's choice of an improper and hazardous method of performing a task when a safe method was equally available, citing Wadiak v. Illinois Central R. Co., 7 Cir., 208 F.2d 925; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S.W. 800; Lloyed v. Norfolk & W. R. Co., 151 Va. 409, 145 S.E. 372; Norfolk & P. Belt Line R. Co. v. White, 143 Va. 875, 129 S.E. 339; Louisville & N. R. Co. v. Green, 255 Ala. 642, 53 So. 2d 358. However, the rule of these cases is not involved and they are not in point in this situation because plaintiff and Smeithers were using the method intended, and which the foreman directed, namely, picking up the ties, carrying them to the motorcar and placing them on its handles. So far as appears from the evidence, this method applied to all of the ties in the pile. Certainly both ties were moved by the same method. It cannot reasonably be contended that plaintiff selected the method of work to be used.

As to defendant's contention that liability cannot be based on Smeithers' failure to warn, because he did not have time to do so, we consider this to be a jury issue. Plaintiff and Smeithers disagreed on whether there was a practice with respect to giving a warning when a man was about to shift or change his hold on a tie. Plaintiff said that there was such a practice 'so that the man would know that the weight was going to be shifted and give him a chance to get into a...