Kiger v. Terminal R. Ass'n of St. Louis
| Decision Date | 10 March 1958 |
| Docket Number | No. 46370,No. 1,46370,1 |
| Citation | 311 S.W.2d 5 |
| Parties | Lester KIGER, Plaintiff-Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant-Appellant |
| Court | Missouri Supreme Court |
George P. Mueller, St. Louis, Evans & Dixon, John P. Montrey, St. Louis, for (defendant), appellant.
Charles E. Gray, St. Louis, Terry, Jones & Welton, Kansas City, for (plaintiff) respondent.
HOLMAN, Commissioner.
Plaintiff, Lester Kiger, was injured while at work for the defendant on February 4, 1956, when a refrigerator car door fell upon him as he attempted to close it. He was employed by the defendant as a carman, the specific job classification being 'air hose couple-up man.' This action to recover damages for his injuries was brought under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Section 51 et seq. A trial resulted in a verdict for plaintiff in the sum of $30,000. Defendant has appealed from the judgment entered thereon.
Plaintiff's case was submitted to the jury on the theory that defendant failed to warn plaintiff that the door was detached at the top, although one of its employees knew of that condition in time to have warned plaintiff thereof, and knew that the door was likely to fall if plaintiff came in contact with it. In addition to certain trial errors, defendant contends that the evidence was not sufficient to warrant the submission of plaintiff's case to the jury because (1) it is said that it was plaintiff's duty to inspect the car and hence he cannot complain that he was not warned of a defect which it was his duty to discover by inspection, and (2) since plaintiff observed some damage to the door, his negligence in not examining all of the door before attempting to move it was, as a matter of law, the sole cause of his injury.
Plaintiff testified that his main duties were to bleed the air from incoming trains so that the cars could be switched, and to couple air hoses on the outgoing trains. He was also required to inspect interchange cars. As the name implies, those are cars that are brought into the yard by one railroad for delivery to another. Plaintiff also did some inspection work at the Lesperance Street yard on Sundays when he worked in the place of another employee who had that day off. Aside from the foregoing, he would make inspections only when requested by the foreman, yardmaster, or yard clerk who wanted an empty car for a shipper after the regular car inspector (who worked only on the day shift) had gone home. In the four years he had worked in the Tyler Street yard he had inspected about fourteen such cars.
It was plaintiff's testimony that on the night in question one of the yard clerks, Mr. York, told him there was a car door open on track 4 in Tyler Yard. The rules required that refrigerator car doors be closed before the car could be moved, and there seems to be no doubt but that it was a part of plaintiff's duties to close the door in question. Another airman, Mr. Hill, also worked on the shift (3 to 11 p.m.) with plaintiff. Shortly before 9:30 p.m., plaintiff and Hill left the yard shanty to close the door on the car in question. Plaintiff was one or two car lengths in front of Hill. When plaintiff arrived at the car he observed (by use of his flashlight) that the door appeared to have been sideswiped, as it was scratched and the rod on the right was bent a little. He then reached up and took hold of a lever used in opening and closing the door and the door immediately fell. The door, which weighed about 1,000 pounds, struck plaintiff in the back of the head, then across the shoulders and the small of his back, and the next thing he knew he was lying on the ground with the door across both his legs. Hill was able to free one leg and then obtained help so that the door could be lifted off of the other one. Plaintiff was able to walk and stayed in the shanty for about an hour until the end of his shift, at which time he went home. At 3 o'clock the next morning he awakened and was suffering such intense pain that he had a neighbor drive him to the Missouri Pacific Employees Hospital. His injuries will be hereinafter described in connection with the consideration of defendant's contention that the verdict was excessive.
Plaintiff stated that his only intention was to close the door; that he wasn't going to inspect the car and did not look above the bottom half of the door. Mr. York, a witness for defendant, testified that he and another yard clerk, Freddie Meyer, went to the instant car earlier that day and removed a heater from the bunker. They noticed that the open door was damaged and that the top hanger on the north side appeared to be off. He said that ordinarily he would have closed the door but he didn't think he should touch this one. He stated further that he told plaintiff the door had been hit and asked him to look at it; that he didn't tell plaintiff the hanger was loose at the top. Also tending to show the condition of the door was the testimony of Hill who said it appeared to fall immediately after plaintiff reached up and touched it.
We have concluded that there is no merit to the contention that plaintiff did not make a submissible case. In considering that question we are mindful that we view the evidence in the light most favorable to the plaintiff and disregard defendant's contrary evidence. Moreover, the Supreme Court of the United States has recently said, Rogers v. Missouri Pacific Railroad Co., 352 U.S, 500, 77 S.Ct. 443, 448, 1 L.Ed.2d 493.
Evidence favorable to plaintiff would reasonably support a finding that defendant (through its clerks) had knowledge of the fact that the top hanger on the north side was off and yet no warning as to the damaged condition of the door was given to plaintiff when he was told that the car door was open. It was not plaintiff's duty to inspect the car but it was his duty to close the door. The jury could reasonably have found that in the performance of that duty he was injured as a result of a condition which was known to defendant and about which plaintiff had not been warned. Under those circumstances the jury could reasonably have found that the failure of defendant to warn plaintiff was negligence and that his injuries resulted, in whole or in part, from such negligence. Terminal R. Ass'n of St. Louis v. Howell, 8 Cir., 165 F.2d 135.
Defendant, in support of its contention, relies primarily upon the case of Jaroszewski v. Central R. Co. of New Jersey, 9 N.J. 231, 87 A.2d 705. In that case the plaintiff was injured while he was in the performance of his duties as a car inspector when struck by a falling freight car door he had been attempting to close. Plaintiff asserted that the railroad was negligent in failing to make reasonable inspection of the car. Recovery was denied because of failure to prove negligence, as it appeared that defendant was in the performance of its duty to inspect when plaintiff was injured and that it was plaintiff's duty to discover the defect which caused his injury. It is obvious that the Jaroszewski case is readily distinguishable from the instant one, as plaintiff herein was not performing duties as a car inspector when injured, and in Jaroszewski there was no evidence to indicate that the railroad had prior actual knowledge of the defective and dangerous condition of the car.
Defendant has also cited the case of Hammond v. City of El Dorado Springs, 362 Mo. 530, 242 S.W.2d 479, 31 A.L.R.2d 1367. Therein plaintiff was an employee of an independent contractor engaged in repairing a water tower for defendant city and sought to recover for injuries sustained when an iron rod broke inside the tower. We held that the city was not liable because the injury resulted from a condition which the contractor had been engaged to repair and correct under the contract. That factual situation is so different from the one before us that it should be obvious the case has no application here.
Since we have indicated that the jury could reasonably have found that the defendant was guilty of negligence which played some part in producing the plaintiff's injuries, we think it would follow that the alleged contributory negligence of the plaintiff was not, as a matter of law, the sole cause of his injury. Moreover, it should be noted that (1) it was dark at the time and place of the occurrence, (2) the evidence does not indicate that plaintiff could see, from where he stood at the bottom of the door, that the hanger was off, and (3) there was no evidence that the damage observed by plaintiff would have caused the door to fall if he attempted to close it. In the situation presented it may not be said as a matter of law that plaintiff's alleged contributory negligence was the sole cause of his injury. Therefore, as indicated, we rule that the case was properly submitted to the jury.
Defendant next contends that the court erred in refusing Instruction C offered by it. That instruction directed a verdict for the defendant upon a finding that yard clerk York told plaintiff that there was a damaged car door on a certain track and that plaintiff went to the car to inspect the door for the purpose of arranging for repairs to said door, and that such was his duty, and that while he was making or about to make said inspection he was injured, etc. While we have decided that portions of the testimony of defendant's witnesses York and Hill are sufficient to support the facts submitted, we nevertheless have concluded that the instruction was...
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