Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc.

• Decision Date: 11 July 1960
• Docket Number: No. 47698,No. 1,47698,1
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, and Chicago, Milwaukee, St. Paul & Pacific Railroad Company, a Corporation, Respondents, v. PAYWAY FEED MILLS, INC., a Corporation, Appellant
• Court: Missouri Supreme Court

Page 1

338 S.W.2d 1

KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, and Chicago, Milwaukee, St. Paul & Pacific Railroad Company, a Corporation, Respondents, v. PAYWAY FEED MILLS, INC., a Corporation, Appellant.

No. 47698.

Supreme Court of Missouri, Division No. 1.

July 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Sept. 12, 1960.

Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Paul E. Vardeman, Jr., Kansas City, for appellant.

William H. Curtis, Martin J. Purcell, Morrison, Hecker, Buck & Cozad, Kansas City, for respondents.

HOLMAN, Commissioner.

S. A. Price, a switch foreman employed by plaintiffs, sustained serious injuries to his legs on January 4, 1955, as a result of insufficient clearance between defendant's movable dock and a boxcar upon which he was riding. Plaintiffs paid Price $15,000 in settlement of his claim against them under the F.E.L.A. 45 U.S.C.A. Sec. 51 et seq. In this action, based upon the theory of implied indemnity, plaintiffs obtained a judgment against defendant for the amount paid Price, i. e., $15,000. Defendant has appealed. Since the amount in dispute exceeds $7,500, and the notice of appeal herein was filed prior to January 1, 1960, we have jurisdiction of this appeal. Article V, Section 3, Constitution of Missouri, 1945 V.A.M.S.; Section 477.040, as amended Laws 1959, S.B.No. 7, P.P. Vol. 27 V.A.M.S.

The defendant's building was located just north of Third Street in Kansas City, Missouri. Its loading platform was on the east side of the building. Railroad cars used by defendant were loaded and unloaded from switch tracks 13 and 14 which ran generally north and south on the east side of the building. The surface between tracks 13 and 14 was paved with concrete. In the area between the two tracks were several sections of movable docks. The platform of these docks was the same height as the floor of a boxcar and each section was about six feet wide and ten feet long. These docks were quite heavy and several men were required to move a section thereof.

Track 14 was located next to defendant's loading platform and track 13 was the next track to the east. These tracks were jointly operated and maintained by plaintiffs under a 'joint agency agreement' and employees engaged in switching operations thereon were the joint employees of the plaintiffs. While these tracks were referred to as public team tracks the evidence was that they were never used by anyone except defendant. Several times each day cars used by defendant would be switched onto or removed from those tracks. In loading cars spotted on tract 13 three steel gangways (about five feet in length) would be used. One would be used to connect defendant's loading platform with the door on the west side of a car on track 14, another would be placed between the east door of that car and a section of the movable dock, and the third would connect the dock and a car on track 13. Defendant's employees would use hand trucks in moving the feed through the car on track 14 to the movable dock and thence into the car on track 13 which they were loading. A driveway, occasionally used by trucks, extended from Third Street (across the tracks in question) to a grain bin on the east side of defendant's building. When that driveway was used it was necessary to move at least one section of the movable docks that were situated between tracks 13 and 14.

Mr. Price was injured at about 4:15 a. m. on January 4, 1955. He testified that there were three cars on track 13; that after they had completed spotting the cars on track 14 they desired to remove the loaded center car from track 13 and replace it with an empty car, and, to do so, they had to pull out the north car and the center car; that he was working on the west side of these cars; that he pulled the pin between the middle and rear cars and gave the backup signal to a switchman farther north who relayed it to the engineer; that switchman Jones was on top of the middle car and because he was starting to descend the south ladder on that car he (Price) ran north and mounted the foot stirrup on the north end of that car; that 'it wasn't pitch dark down there but it was dark; it was raining a little bit'; that no direct light was shining in that area. Mr. Price testified further that the switching movement was going three or four miles per hour and that it had moved about 60 feet between the time he gave the backup signal and his injury; that he had walked about 40 feet, and after he got on the car and it had moved about 20 feet, he heard Jones shout for him to jump; but that he had no chance to jump and his legs were caught between the dock and the car; that if he had jumped when Jones shouted he 'would have been cut all to pieces.' He was able to hand onto the car until Jones signaled for the engineer to stop, and was then taken to the hospital. Mr. Price stated that if he saw the dock before it hit him it was only for a 'split second'; that he had never before seen a section of the dock that was too close to the track, although at one time a crew he was working with had refused to switch the track because the docks were too close; that he had seen defendant's employees move these docks but had never seen any railroad employees do so.

Hubert Jones testified that he had been a member of crews that had regularly switched tracks 13 and 14 for several years prior to the time Mr. Price was injured; that only cars for the use of defendant were placed on these tracks and that the docks between these tracks were used exclusively by defendant; that he had never seen any railroad men move those docks; that on the occasion in question he was on top of the middle car and when the movement started he released the brake on that car and then started down the ladder on the south end of the car; that he looked up and saw that Price was going to hit the dock and 'hollered' for him to jump; that Price was struck by the dock immediately thereafter; that the point of contact was the northeast corner of the northernmost dock; that Price was not looking toward the north but was looking in toward the car; 'he always stares right at the car.'

Another member of the switch crew was Robert F. Lemley. He worked near the engine and one of his duties was to pass signals on curves. He testified that on the occasion in question he hooked the front of the engine onto the north car on track 13; that the north end of that track is curved toward the east and the engineer was out of sight of the two men on the middle car; that he stepped out where he could see that car and received a backup signal from either Price or Jones which he in turn gave to the engineer; that he then got on the side of the engine and did not know that anything unusual had occurred until the engine stopped and he then looked back and saw that Mr. Price had been injured.

Walter McEntire, assistant roadmaster for Kansas City Southern, testified that seven or eight months before the instant casualty he had talked with Mr. Morgan, the foreman at defendant's docks, and had told him that one of the movable docks was too close to the track and endangered the switch crew. Morgan agreed to have the dock moved and did so. About two months later he found another dock too close to the track and contacted defendant's superintendent, Mr. Alley, who directed him to see the dock foreman, Mr. Morgan; that he saw Mr. Morgan who called two or three men and moved the dock back while he was present; that on the morning after Mr. Price was hurt he went with the assistant engineer, Mr. Thrasher, and they measured the position of the dock and reported the incident to Mr. Alley.

J. W. Thrasher, assistant engineer for Kansas City Southern, testified that he went to the scene of the casualty shortly after 8 o'clock on the morning of the occurrence; that he made measurements there and found that the dock was 5 1/2 feet from the center of the track; that the standard base clearance is 8 1/2 feet from the center of the track, the distance between the rails is 4 feet 6 1/2 inches, and the average boxcar has an overhang of 2 1/2 feet beyond the rail, that there were marks in the dust indicating that the dock had been pushed back several inches away from track 13; that he had never seen track 13 or the docks on the west side thereof used by anyone except defendant.

Plaintiff read into evidence two answers made by defendant to interrogatories which disclosed that defendant's employees had worked until 12:30 a. m. on January 4 and that during the remainder of the night defendant had a night watchman patrolling the building.

The only witness called by the defendant was W. L. Alley, its vice-president in charge of traffic. He testified that the driveway over tracks 13 and 14 had not been used for several days prior to the time Price was injured; that there were lights on the west side of the defendant's building which burned all night; that a representative of Kansas City Southern had spoken to him about the clearance between the docks and the cars at some time before the occurrence in question but that he did not learn of the injury to Mr. Price until about a year after it had occurred; that since he had become connected with the defendant in 1946 he had never seen anyone move the docks between tracks 13 and 14 except employees of the defendant; that he did not know who owned the docks but that the defendant had maintained them and had used them exclusively.

Defendant in its answer admitted that 'the sum of $15,000 was a reasonable settlement of Price's claim.'

In Instruction No. 1 offered by plaintiffs the negligence of defendant was submitted under the res ipsa loquitur doctrine. Therein the jury was also required to find that the negligence of plaintiffs was 'passive and secondary' and that the negligence of defendant was 'active and primary.' The court at the request of defendant gave three instructions which directed a verdict for it. Instruction...