Lowden v. Denton

• Decision Date: 03 June 1940
• Docket Number: No. 11530.,11530.
• Citation: 110 F.2d 274
• Parties: LOWDEN et al. v. DENTON.
• Court: U.S. Court of Appeals — Eighth Circuit

110 F.2d 274 (1940)

LOWDEN et al. v. DENTON.

No. 11530.

Circuit Court of Appeals, Eighth Circuit.

February 28, 1940.

As Amended on Denial of Rehearing March 25, 1940.

Writ of Certiorari Denied June 3, 1940.

Hale Houts, of Kansas City, Mo. (William S. Hogsett and Alvin C. Trippe, both

of Kansas City, Mo., on the brief), for appellants.

Thomas E. Deacy, of Kansas City, Mo. (Mitchel J. Henderson, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER and WOODROUGH, Circuit Judges, and MOORE, District Judge.

Writ of Certiorari Denied June 3, 1940. See 60 S.Ct. 1100, 84 L.Ed. ___.

GARDNER, Circuit Judge.

This was an action to recover damages for personal injuries received by appellee in a fall on an ice-covered passageway adjacent to the depot platform of the Chicago, Rock Island and Pacific Railway Company at Caldwell, Kansas. Appellants are trustees of the Chicago, Rock Island and Pacific Railway Company, and appellee, at the time in question, was a railway mail clerk. It will be convenient to refer to the parties as they were designated in the lower court. Plaintiff's complaint was in conventional form, and the defendants denied negligence, pleaded contributory negligence and assumption of risk.

Plaintiff received his injuries on the morning of February 19, 1938, as he was leaving the station platform at Caldwell, Kansas. He had left Caldwell the night of February 17, 1938, on his regular run to Fort Worth, Texas. At that time it was raining, and during his absence Caldwell experienced its worst storm of the winter. The rain very shortly turned into a freezing sleet and subsequently to snow and sleet. The snow and sleet froze and adhered to trees, poles and wires; some wires were down; the streets and sidewalks and all exposed surfaces were icy. The street next west of the station was too icy for safe transit of an ambulance. The storm, continuing through the day and night of the 18th, subsided about six a. m. the morning of the 19th. In order to keep the tracks and switches clear for the movement of trains and the station open, the railway company had to employ its full force of men and hire an extra man, who was all that was available. The entire available crew worked throughout the 18th and all that night, keeping the switches in the yards clear of ice and snow for the movement of the trains, and after the storm subsided, cleared ice and snow from a considerable portion of the station platform, and the men were still working clearing snow and ice from the south end of the station platform when plaintiff got off the train at 8:20 on the morning of the 19th. Plaintiff could see the men still working. Some were shoveling snow and ice off the platform, which was not yet completely cleared, and others were working on the switches, which had to be kept clear for the movement of trains due shortly. The temperature during the storm went down to about eight degrees above zero.

The railroad tracks pass through Caldwell in a northerly and southerly direction, and the station platform is on the westerly side of the tracks. Almost directly opposite the place where the mail car stops and on the west edge of the depot platform was located what was known in the evidence as the carmen's building. Caldwell was the division point for mail clerks and they and others connected with the railway service made use of this building. Plaintiff, following the cleared portion of the sidewalk, went over to and entered this building. He was carrying two suitcases, one containing material for the clerk on the next run, which he left at the building. While in the building he heard someone advise, "You had better take the path," but plaintiff did not know that the remark was addressed to him, or that the speaker referred to the cleared path formed by the railroad crew in the snow-cleaning efforts. There was a completely cleared space on the platform eight or nine feet in width next to the tracks and extending north to the end of the platform, where it connected with Central Avenue, a street running east and west and crossing the tracks. This cleared space extended also to the south to nearly the south end of the platform, where men were still at work clearing away the snow and ice. When plaintiff left the carmen's building, he passed to the north end of it, walking on the station platform. He then turned west to leave the platform and started out over a passageway or path which had not been cleared of ice or snow and which was a short cut to First Street, without testing the snow underfoot to see whether ice were underneath. Two steps from the cleared platform, he slipped and fell on the ice. He got to his feet, but fell again, and on the second fall fractured his right hip, which is the injury for which he seeks damages.

This pathway was used by the linemen and other railroad employees having occasion to go to the rear of the carmen's building. It extended west along the south end of an enclosed park to the dead end of First Street, which intersects Arapahoe Street, the latter named street running northerly from the intersection along the westerly side of the station grounds. It was a cinder path, but at the time in question the surface was covered with snow and ice. The character, location and appearance of this path can better be understood by reference to the following photograph introduced in evidence by the plaintiff:

The railway company had made some attempt to safeguard the pathway to a point beyond where plaintiff fell, by scattering salt down the passage to melt the snow and ice, but the weather was so cold that the ice when melted would freeze again within two hours, and no salt had been sprinkled there within that time of the accident. Cinders were not generally available, the main supply being frozen under.

Plaintiff presented his case on the theory that this pathway was a means of ingress and egress to and from the station grounds and that the railway company was negligent in not having cleared it of snow and ice at the time of the accident. At the close of all the testimony defendants moved for a directed verdict, which motion was denied, and the case was submitted to the jury on instructions to which defendants saved various exceptions. The jury returned a verdict in favor of plaintiff, assessing his damages at $6,000, and from the judgment entered defendants prosecute this appeal.

It is among other things contended by defendants that there was no substantial evidence of negligence, and hence, the court erred in denying their motion for a directed verdict. In our view of the record, it will not be necessary to consider other contentions urged by defendants on this appeal. There is little or no dispute between the parties as to the law applicable.

The railroad company owed the same duty to plaintiff that it owed passengers under similar circumstances. Scheipers v. Missouri Pacific R. Co., Mo.Sup., 298 S.W. 51; Louisville & N. R. Co. v. Dougherty, 170 Ky. 10, 185 S.W. 114, L. R.A.1...