Lesch v. Terminal R. R. Ass'n of St. Louis, 43006
| Citation | 258 S.W.2d 686 |
| Decision Date | 13 April 1953 |
| Docket Number | No. 2,No. 43006,43006,2 |
| Parties | LESCH v. TERMINAL R. R. ASS'N OF ST. LOUIS |
| Court | United States State Supreme Court of Missouri |
Page 686
v.
TERMINAL R. R. ASS'N OF ST. LOUIS.
Motion for Rehearing or to Transfer to Court en Banc Denied
June 8, 1953.
Page 688
Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.
Frank Coffman, E. H. Schwarzenbach, Thomas M. Gioia, St. Louis, for respondent.
BOHLING, Commissioner.
Fred J. Lesch, plaintiff, secured a judgment of $30,000 against the Terminal Railroad Association of St. Louis, a corporation, defendant, on account of personal injuries. Defendant appealed and assigns error in the submission of plaintiff's case to the jury, in the giving of plaintiff's main instruction, in the admission of evidence, in the argument of plaintiff's counsel, and contends the judgment is excessive.
Plaintiff was a helper and checker for the Holt Drayage Company, engaged in hauling freight from railroad cars. Defendant had spotted a refrigerator car containing cardboard cartons of canned pineapple for unloading on track 9 at its Tenth Street Team Track in St. Louis. The car was about 40 feet long, 8 feet wide, and 7 1/2 to 8 feet tall, with insulated sides of a thickness of 6 to 8 inches. There was a double door on each side at the center. Each door swings outward and is about 2 1/2 feet wide. Demurrage charges would accrue after forty-eight hours. The cartons were to be distributed to seven dealers. Two hundred cartons had been unloaded from the center of the car on the morning of July 6, 1950, and the door closed.
Plaintiff's employer instructed him to check the freight in the car and to arrange it for unloading. Plaintiff had engaged in this work for eleven years. He was interested in a particular order. He did not notify defendant he was going into the car. Plaintiff entered the car about 1:25 p. m., opening one of the double doors, and latching it against the side of the car. No truck was there for loading. The day was sunshiny. He took his shirt off and placed it, with his cap, glasses and the distribution sheet on a carton on the floor about two or three feet from the door. The cartons were stacked to within three feet of the roof of the car. He used some cartons for steps, climbed to the top, and crawled to the extreme east end of the car where the cartons were a few inches higher, which indicated there were some different sized cartons in the car. When he was within about two feet of the east end, the door slammed shut, making it completely dark in the car. Prior thereto he could see all of the car. He shouted that he was in the car and kicked the side of the car. The car was bumped and he was thrown against its end and side. He felt the car make two stops. He crawled back towards the door. There was a sudden stop when he was near the edge of the cartons 'and from that time I was blacked out.' He was unconscious for an hour and forty minutes.
Defendant's Rule 795 provided in part: 'Cars standing in station train shed or * * * freight cars on team tracks * * * must not be moved until all persons in or about the cars * * * have been given ample warning.'
Thomas W. Chappius, plaintiff's witness, was foreman of defendant's switching crew, and had orders which required the moving of the refrigerator car. He was familiar with the above rule. He saw the open door on the south side of the refrigerator car, which indicated to him the car was being loaded or unloaded and people were in the car. He looked in the car, noticed that freight had been removed between the doors and saw freight in each end of the car up to the doorway but did not see plaintiff or his shirt, cap or glasses. The open door gave only a partial light in the car and, in his opinion, it was not sufficient to see a person at the end of the car. He had not been informed and had no idea anyone was in the car. A man inside the car could have heard a warning, but he made no sound and gave no warning that the car was to be moved because he did not see anyone. There was no truck at the car, but he had seen checkers at cars when there was no truck present. He
Page 689
closed the door to keep the freight from falling down on the tracks. The switching took six to eight minutes and included nine starts and stops.Elmer Hakes, the truck driver who had removed the 200 cartons in the morning, returned to the car about 2:30 p. m. for another load. The car had been moved. He opened the south door and found plaintiff doubled up in the car, near the door, unconsious, with twelve to fourteen cartons around him. He carried plaintiff out. Plaintiff soon regained consciousness. He saw plaintiff's shirt, glasses and distribution sheet by the door. Plaintiff was not able to help him load. He took plaintiff home.
Additional facts will be stated in the course of the opinion.
The only evidence adduced on the merits was offered by plaintiff, who was an invitee, not a trespasser or licensee. Defendant, admitting a duty to exercise ordinary care to warn persons known to be in cars on team tracks of intended movements of the cars, contends the rule is applicable only when the railroad employees have notice, express or implied, that there are persons working in or around the car. Defendant mentions three varieties of notice: express, implied, and constructive; stating that we are not concerned with constructive notice; that there was no evidence of express notice, and that Chappius had implied notice, 'if, and only if,' he had knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. Defendant argues due care does not require a switchman, if he looks and sees no one inside a car, to shout a warning to a possible occupant of the car. 66 C.J.S., Notice, Secs. 3-7, pp. 637-640; 39 Am.Jur. 238, Sec. 12; Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292, 297; Weed v. American Car & F. Co., 322 Mo. 137, 14 S.W.2d 652, 655[2-5]. Defendant says Lovell v. Kansas City So. R. Co., 121 Mo.App. 466, 472, 97 S.W. 193, 194, 195, is the closest case on the facts.
Defendant argues that plaintiff is bound by his witness Chappius' testimony that he looked and did not see anything to provoke further investigation, citing Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626, 633[11, 12]. The Draper case is distinguishable from the instant case in that here there are other facts and circumstances of record from which the jury could draw contrary inferences. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, 50.
The standard of care set by defendant's rule was that 'freight cars on team tracks * * * must not be moved until all persons in or about the cars * * * have been given ample warning.' Ordinary care is the standard established by law. Witness Chappius testified he was familiar with the rule; the open door indicated the car was being loaded or unloaded and people were in there; the light in the car was insufficient to see a person at the end of the car and he gave no warning; that is, he made no further attempt to ascertain if someone he could not see was in the car. There was two and one-half to three feet of space between the top of the cartons and roof of the car. He had knowledge that checkers were at the cars when trucks were not present. Plaintiff testified he placed his shirt, cap, glasses and distribution sheet on a carton about two or three feet from the door, and the truck driver, when he opened the door and discovered plaintiff on the car floor, saw these articles by the door. The jury could infer and find from the testimony that Chappius, although he looked, negligently looked in that he failed to see what in looking he should have seen and, also, in not further attempting to ascertain if someone were in the car.
Under the evidence there was a duty on defendant to find out and know whether persons were in or about the car before moving it, and in such circumstances negligent ignorance has been considered equivalent to actual knowledge. Knowledge which defendant had or ought to have had is imputed to defendant. Weed v. American Car & F. Co., 322 Mo. 137, 14 S.W.2d 652, 655[3-5]; Crane v. Liberty Foundry Co., 322 Mo. 592, 17 S.W.2d 945, 957; 66 C.J.S.,...
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