Kelly v. Chicago & Alton Ry. Co.

• Decision Date: 01 March 1904
• Citation: 79 S.W. 973,105 Mo.App. 365
• Parties: KELLEY, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

79 S.W. 973

105 Mo.App. 365

KELLEY, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 1, 1904

Appeal from Audrain Circuit Court.--Hon. E. M. Hughes, Judge.

REVERSED.

STATEMENT.

Action for damages on account of an injury received by the respondent because of alleged negligence on the part of the appellant. The defenses pleaded consisted of a denial of the negligent conduct charged, a special plea of contributory negligence, in which it is averred that the defective appliances complained of by the respondent were in his charge, and if they were out of repair it was his duty to repair them, or procure others; and the defense that the injury resulted from a danger incident to respondent's employment and due to the condition of the appliances he was working with and of which, therefore he assumed the risk.

Kelly the plaintiff, engaged to work for the appellant railway company as a locomotive fireman, in September, 1902, having previously had three years experience in that vocation. The alleged accident in which he was hurt occurred on his second run, which began on the evening of September 22d, at half past eleven or twelve o'clock. He was called at six o'clock and put on an engine (No. 305) to run from Slater to Kansas City. The train was not made up, however, until later and at the hour first mentioned. Meanwhile, from six o'clock until the train started, Kelly stayed on the engine and observed the conditions under which he would have to work and the appliances he would have to work with. He said he got a fall while on the trip and in consequence received the injury for which he sues. The petition avers the fall was due to the negligence of the company in furnishing defective and leaking hand oilers, lamps and torches, from which the oil would drip on the floor of the engine cab making it slippery, and soaking into the shoes of the operatives on the engine; that in consequence of the slippery condition of the floor and of his shoes, due to the leaking oil, and in consequence, too, of the lights going out because the lamps would not hold oil, he struck one foot against an obstacle, the other foot slipped on the floor and he fell on a hard substance and was hurt. We will reproduce later the respondent's narration or the circumstances of the accident, but before doing so will state what he said about the condition of the engine cab and the appliances therein. Kelly swore that over the steam-gauge and the water-gauge were two small lamps, intended exclusively to illuminate those gauges; that there should be in an engine two red and white lanterns to signal with and two torches, one for the engineer and one for the fireman. He found those appliances and utensils there, but, he said the steam-gauge lanterns torches and some oilers were leaking. He said, too, it was the duty of the fireman to keep the lamps filled with oil and all the appliances in good condition. As to the torches his statement was that they were packed in a box on the front of the tender until needed for use. Those torches and other lights leaked so much, he said, that they had to be frequently filled and it was hard to keep them burning. He testified that oil dripped from several vessels and spread over the floor of the cab, greasing it and making his shoes so slippery that it was impossible to stand with safety on the floor of the cab. He discovered the leaky condition of the torches before leaving Slater. The fall occurred at Higginsville, forty miles from there, while the engine was standing on a side track to let another train pass; in which contingency the headlight of the stationary engine must be hooded or covered. It was the fireman's duty to do this and in order to do it Kelly lighted a torch, went over the box-seat on the left hand side of the cab, through the cab window, walked along the running-board to the front of the engine and covered the light. When the train was ready to start he repeated the trip, to unhood the headlight and, as he was returning, the torch went out; he said, because all the oil had escaped from it. This left him in the dark and as he entered the cab he struck his foot against the box-seat stumbled, his other foot slipped on the greasy floor, he fell and was hurt. We will quote his version of the accident as it appears in several parts of the testimony.

"Q. How far did you go before anything happened? A. Higginsville.

"Q. How far is that west of Slater? A. As it was my first trip on the west end I couldn't really say.

"Q. What was necessary for you to do there? A. When we turn out to meet another train, according to the book of rules, we have to cover the headlight, and when it passes, uncover it, and I covered it.

"Q. Did the engine turn on the side track there? A. Yes, sir.

"Q. What did you do? A. I covered my headlight.

"Q. Explain how you went around there and how you came back? A. There's a running-board on the outside of the engine going to the headlight and I went out the running-board.

"Q. That is to walk around to the headlight? A. That's what it's for.

"Q. How did you get out? A. I walked out on the running-board.

"Q. You don't walk out that cab? A. There's a little window by the fireman's seat-box and it was raining and I had it closed, and I opened the window and walked out over the running-board and took my torch as there were pipes along there, I took it and covered the headlight.

"Q. Where did you go in the engine? How did you get back into the engine? A. I went back the way I came, over the running-board, and I stepped down on the box-seat.

"Q. Well, what happened to your torch while you was out there? A. It went out.

"Q. Why did it go out? A. For want of oil.

"Q. It had all run out? A. Yes, sir.

"Q. When you came back into the engine did you have any light? A. No, sir.

"Q. What happened when you came back into the engine? A. When I came back into the engine that time I sat down on the seat-box as I had nothing else to do; I had covered the headlight and the other train hadn't shown up, and I sat down until time to go out and uncover it.

"Q. Did you have to put in any oil? A. Not then, not until we was ready to start out; then, when the other train passed us I was ready to start out; I walked out and uncovered my headlight and walked back and had to step over the seat-box to put in a fire; I had to carry a very hot fire, which called me to put one in as soon as we started; in going back without a light my toe caught on the seat-box and my other foot slipped out from under me like that, and I fell down in the deck with my head and shoulders in the tank and my left groin on the apron and from the way I fell it appeared I fell on some loose coal that fell down; naturally rolls down.

"Q. Where did it injure you? A. In the left groin, right in there."

On cross-examination, Kelly testified as follows:

"Q. What was it you knocked your toe on? A. My seat-box; the seat-box which we sit on; the little box we sit on called the box-seat.

"Q. What was it caused you to fall? A. When I opened this door that goes in from the running-board there's a little space there of about that distance and then my seat-box sets on a level with that, about a foot or fourteen inches high and about two feet long, maybe a little longer; I have to step over that; most of the engines have a little space; the seat-box moves back and you can put your foot in between like that; but this box-seat was jammed against the boiler-head and the only way to get over it was to step over it and in doing it my torch went out and my toe caught about this much; I fell or stepped over like that, and this foot slipped from under me and I went headlong down with my head and shoulders in where the coal goes and my feet towards the coal door and my left groin on that place between the engine and tank.

"Q. How long had the light been out? A. It went out while I was out there.

"Q. Before you fell? A. It went out while I was out; I lit it and went out there and it went out between the head end of the engine and the cab; it was raining.

"Q. What caused you to fall was knocking your toe? A. I didn't get my foot high enough; didn't raise it high enough; couldn't see to; and my other foot naturally would come out from under me quicker than it would if it was dry, I suppose.

"Q. Then oil on the floor had nothing to do with causing you to stump your toe? A. No, but the oil on that sole--probably if the oil hadn't been on the sole I would have had good foothold enough to catch myself; but as soon as that come the rest of my foot went so slick, it went out from under me and made me fall quicker; if I hadn't had the oil I would have fallen slower and had an opportunity to grab something.

"Q. If you hadn't stumped your toe you wouldn't have fallen? A. No, sir, I suppose not, unless I had fallen later on.

"Q. At the time you did fall, though? A. No, sir, at the present time, no, sir, I wouldn't have fallen then.

"Q. It wasn't the slippery condition of the floor that really caused you to fall, it was knocking your foot as I understand? A. If the floor had not been in a slick condition I wouldn't have got the grease on my shoe.

"Q. But it was knocking your toe that caused you to fall down, wasn't it? A. Yes, sir; I presume it was.

"Q. What I want to find out is, I want to know whether it was because of your stumbling and knocking your foot against some object that caused you to fall, or whether it was because you slipped? A. I have said before that it did."

Kelly testified in regard to the condition of the torch before the trip began as follows:

"Q. That was the steam-gauge lamp that leaked? A. Yes, sir.

"Q. What other lamp leaked? A. The torches leaked.

"Q. What are the torches? A. Those you...