Luthy v. Terminal R. Ass'n of St. Louis

• Decision Date: 12 November 1951
• Docket Number: No. 42514,No. 2,42514,2
• Citation: 243 S.W.2d 332
• Parties: LUTHY v. TERMINAL R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

Page 332

243 S.W.2d 332

LUTHY v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 42514.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1951.

Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.

Mark D. Eagleton, Wm. H. Allen, Rene J. Lusser, and Arthur J. J. Bohn, St. Louis, for respondent Walter N. Luthy.

BOHLING, Commissioner.

This is an appeal by the Terminal Railroad Association of St. Louis, a corporation, from a judgment for $15,000 in favor of Walter N. Luthy in an action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for personal injuries.

Respondent's theory was that appellant was negligent in failing to furnish him a reasonably safe place to work at night. The only issue presented is that respondent did not make a prima facie case, appellant contending respondent had the burden of establishing that he was injured at his place of work; that it was unlighted; that appellant violated a duty to light its switchyard at that exact point; and that the direct result of its failure to do so caused respondent's injury.

Respondent was foreman of one of appellant's switching crews, and was severely injured when he tripped over appellant's first switch operating mechanism west of the Missouri Pacific Railroad Company's 'shanty' alongside track 58 in appellant's yards in St. Louis about 11:50 p. m. on the night of July 10, 1949, as he was in the act of boarding the rear car of a switching movement.

Many tracks and switch operating mechanisms are in appellant's yards. Track 58 extends east and west. The Missouri Pacific shanty is 7 feet, 5 inches south of track 58. Switch operating mechanisms are above ground, and respondent estimated the one involved to be 120, over 100, feet west of the shanty, but an engineer gave the distance as 87 feet, 6 inches. It is south of track 58, with the north edge of its air cylinder 15 inches south of the south rail and, 14 inches in diameter, its south edge 29 inches south of the rail. A short piece of hose or pipe, perhaps 12 inches or so in length, connects the cylinder with an electric air valve, having a housing 9 inches high. The south edge of this housing is 4 feet, 1 inch south of the south rail. Running practically parallel with and 6 feet, 4 inches south of said rail is a 2-inch compressed air pipe, 9 inches above the ground, supported on pedestals. Freight cars overhang the rails approximately 2 feet, 6 inches.

The hours of duty of the switching crew were from 4 p. m. until midnight. Respondent had received instructions to deliver six Missouri Pacific cars from behind Tower No. 1, immediately south of Union Station near 18th street, to the Missouri Pacific at 23rd street. The engine was headed west, and its first movement was to the east. Respondent's duties required him to give the waybills to the Missouri Pacific yardmaster or deposit them in a metal box at the shanty and receive instructions from said yardmaster on what track to deliver the cars. He alighted from the engine about 50 feet west of the shanty to do this and his two helpers continued on east to secure the six cars and return. The Missouri Pacific yardmaster was not at the shanty. Respondent experienced difficulty in locating him, but eventually did so and received the instructions. Next, respondent had to inform his crew, and this required his boarding the train as it returned west with the cars. By the time respondent secured the instructions from the yardmaster, the engine, pulling the cars westwardly on track 58 at about 5 miles an hour, was passing respondent, who was then just east of the shanty.

It was respondent's intention to board the ladder at the southeast corner of the last or east car. He started to walk west, passing to the south of the shanty. He found rubbish had been placed west of the shanty for a distance of about 50 feet and continued to walk westwardly to clear the debris without climbing over it. He then turned north, stepping over the compressed air pipe, and made ready to board the ladder of the east car, which car he was then facing. He knew the switch operating mechanism was in the vicinity but thought it was approximately 60 feet west of him.

Respondent testified it was dark in the vicinity and there was no illumination other than the light from his switchman's lantern. This was an electric dry battery lantern with two small electric light bulbs, and it would show only a few feet, 5 or a little more, ahead when turned sideways. Its more frequent use was for other purposes.

As was customary when intending to seize a grab iron and put a foot in the stirrup of the ladder on the side of a car, respondent looked ahead but saw no obstacle in his way, changed the lantern from his right to his left arm that he might seize the grab iron with his right, started to run westwardly to equalize his speed with that of the moving cars, running sideways, and looking backwards to observe the approaching grab iron in order to take hold of it and pull himself onto the stirrup of the ladder. After running in this manner for about 20 feet and just as he reached for the grab iron but before he touched it, respondent tripped over the air valve housing or the hose or pipe leading from it to the air cylinder of the switch operating mechanism, and was caused to fall.

The only evidence offered by appellant were two exhibits, photographs of the vicinity of the occurrence. Additional facts will be stated in the course of the opinion.

The parties agree that the Federal Employers' Liability Act applies and that respondent had the burden of establishing appellant's actionable negligence. Said Act, in so far as material here, makes a carrier liable in damages to any employee suffering injury 'resulting in whole or in part from the negligence' of the carrier, 'or by reason of any defect or insufficiency, due to its negligence, in its * * * appliances, machinery, track, roadbed * * * or other equipment.' 45 U.S.C.A. Sec. 51, 53 Stat. 1404. The employee's contributory negligence 'shall not bar a recovery,' but merely serves to diminish the damages. Id., Sec. 53. And, since the amendment of August 11, 1939, employees do not assume any risk 'resulting in whole or in part from the negligence' of the carrier. Id., Sec. 54. The effect of the foregoing provisions may be found stated in the following, among other, cases. Tatum v. Gulf, M. & O. R. Co., 359 Mo. 709, 223 S.W.2d 418, 422, 423; Joice v. Missouri-K. T. R. Co., 354 Mo. 439, 189 S.W.2d 568, 572[1-6], 161 A.L.R. 383; Mooney v. Terminal R. Ass'n, 352 Mo. 245, 176 S.W.2d 605, 609[5-6]; Bailey v. Central Vt. Ry. Co., 319 U.S. 350, 352-354, 63 S.Ct. 1062, 87 L.Ed. 1444; Ellis v. Union P. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572.

The Act now leaves for practical purposes only the question of whether the carrier was negligent and whether that negligence contributed in whole or in part as a proximate cause of the injury or death. The Mooney case, supra, quoting authority. It was considered in Terminal R. R. Ass'n of St. Louis v. Farris, 8 Cir., 69 F.2d 779, 784, that the running of trains in and about the Union Station in St. Louis is a complex business, dangerous to appellant's employees and others if not properly conducted, placing a duty upon appellant to adopt all reasonable measures to avoid subjecting its employees to unnecessary dangers. 'The greater the hazard, the greater the care required.' Woods v. Wabash R. Co., 188 Mo. 229, 244, 86 S.W. 1082, 1086. The Tatum case, quoting the Bailey case, supra.

Respondent was injured while discharging his duties as foreman of one of appellant's switching crews in appellant's yards. His duties took him over the place where he was injured. It may be that at the particular point respondent was injured the switchmen do not make or break up trains, or throw switches, or pass over the switches as frequently as in some of appellant's regular yards where they make and break up trains; but plaintiff gave affirmative testimony that at times said place was used the same as similar places in the regular yards, and that quite a bit of switching was done over the tracks involved. One ordinarily expects switching movements to be performed and switchmen to alight from and board cars in the vicinity of switch points in switch yards. We may not say as a matter of law that respondent was not at his place of work.

In Kenney v. Boston & M. R. R., 92 N.H. 495, 33 A.2d 557, 560, stressed by appellant, the head brakeman of a train fell to his death on a dark night when a car the engine was pushing was stopped on the main track, for some unexplained reason, on a bridge several hundred feet from the train it was to be coupled onto. Under evidence that brakemen had occasion to alight on the main track only at the switches and station, the court held there was no evidence that defendant should have anticipated that deceased in the course of his duties would have occasion to alight at the bridge, considering the distance of the bridge from the switches involved. The facts distinguish the Kenney case from the instant case. Consult the Tatum case, supra.

Appellant says that if the 'place of work' was so unsafe as to produce respondent's injury, he alone was responsible for he chose it rather than a point east of the shanty where there were no obstructions, and his own act was the sole direct cause of...