Malone v. Gardner

• Decision Date: 08 October 1951
• Docket Number: No. 41923,41923
• Parties: MALONE v. GARDNER.
• Court: Missouri Supreme Court

Page 516

242 S.W.2d 516

362 Mo. 569

MALONE v. GARDNER.

No. 41923.

Supreme Court of Missouri, En Banc.

Oct. 8, 1951.

Charles M. Miller, Kansas City, for appellant.

Ben W. Swofford, Robert A. Schroeder, Kansas City, Lee E. Weeks, Kansas City, Kan., Swofford, Schroeder & Shankland, Kansas City, Stanley, Stanley, Schroeder, Weeks & Thomas, Kansas City, Kan., of counsel, for respondent.

VAN OSDOL, Commissioner.

The administratrix instituted this action in damages under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for the death of her decedent, Fred W. Malone, who was fatally injured while working for defendant as a hostler at defendant's roundhouse and yards in Kansas City. It is plaintiff's theory that the death of her decedent was the result of falling from the top of an engine used in heating defendnat's roundhouse. Defendant has appealed from a judgment upon verdict for plaintiff awarding $22,000 damages.

Herein upon appeal defendant-appellant contends plaintiff did not make out a submissible case, and the trial court erred in overruling defendant's motion for a directed verdict. And defendant-appellant assigns further errors of the trial court in the giving and in the refusal of instructions; in allowing plaintiff to impeach her own witness; and in the admission of evidence.

Fred W. Malone, 28 years old, in good health, had worked for some months for defendant as a switch engine fireman and, a little over a month before his death, had become a hostler with the duty of running engines in and out of defendant's roundhouse.

Defendant's roundhouse of ten stalls was heated by steam generated in a small switch engine which was made stationary in stall number 7. The switch engine, sometimes called the 'goat,' was moved once daily from its stationary position to the ashpit outside the reoundhouse where the engine was serviced by 'knocking' the clinkers, grate cleaning and refueling, after which it was returned to its stall in the roundhouse and again made stationary by chocking the wheels.

The steam generated in the switch engine passed from the steam dome above the boiler into a heat-radiating system located near the ceiling of the roundhouse. The engine was connected with the heat-radiating system by a pipe 1 1/4 inches in diameter projecting 6 inches upwardly from the steam dome. This pipe was connected with another pipe by means of a swivel union drifting toward the left of the engine; another pipe, about 17 inches in length, extended horizontally toward the front of the engine and connected with another union and ell, and yet another pipe extended vertically and connected with the heat radiation pipes near the ceiling.

When the engine was taken out of the roundhouse, it was necessary to remove a water hose from the water tender at the rear of the engine; one hand valve down near the top of the steam dome was used to shut off the steam from the engine, and another hand valve up nearer the ceiling was used to seal off the steam in the radiation system; the steampipe was then disengaged at or by one of the swivel unions, and the chocks were removed from the wheels of the engine, thus permitting the engine to be moved out of the stall and roundhouse free of all connection with the radiation system. After servicing, the engine was returned to stall 7, the wheels rechocked, the engine being again made stationary; and the water hose was replaced in the water tender. Of course it was necessary to again connect the engine with the radiation system for heating service by re-engaging the steampipe connection and by opening the hand valves above and below the connection. A wrench was used in disengaging or re-engaging the threaded connection.

The top of the boiler of the engine was 10 or 12 feet from the ground or floor of the roundhouse, and the steam dome extended its height 1 1/2 to 2 feet above the top of the boiler. Running boards or 'catwalks' were fixed along the sides of the engine and above the engine's drive wheels. The running boards were used by defendant's employees in repairing and servicing the engine; and iron handrails about 1 inch in diameter extended along the sides of the boiler, being bracketed to the boiler at points somewhat below the top of the curved or rounded body of the boiler. An air pump was set on the left side of the engine about even with and below the steam dome, and the running board on the left side of the engine 'stepped up' about 18 inches in passing over the air-pump apparatus.

When employees were proceeding to disconnect or to reconnect the steampipe connection, they usually went up on the front of the engine and passed back along the running board until they reached a point near and below the steam dome, or they gained access to the running board by passing out through the opening in the front of the cab. Then the employee would 'get hold of the steam dome, pull myself up, brace one foot on the handrail, and my knee on the steam dome.' Sometimes the employee would stand upon the upper surface of the boiler. In reaching the connection and valves, the employee had to lean over toward the left side of the engine. The steampipe was then disengaged, or re-engaged, by the employee; this required the use of both hands.

Plaintiff's decedent was on duty during the morning shift, 12 midnight to 8:00 a. m., the day of his death. The engine was usually given fire 'knocking' service during that shift. At about four o'clock that morning, the steampipe was disengaged and plaintiff's decedent moved the engine out of the roundhouse for fire knocking, being assisted in this movement by Manley, the hostler's helper. Anticipating this movement, the steampipe had been disengaged either by plaintiff's decedent or by one Narron, machinist's helper. When the engine was moved back into the roundhouse, plaintiff's decedent put the hose back into the water tender to the rear of the engine, and was 'standing on top of the tender headed toward the engine,' when Manley closed the roundhouse door and started back toward the turntable in the yards. At this moment Manley heard the 'noise of a man hollering.' When plaintiff's decedent was found, he was five or six feet from the left side of the engine. He was 'down on the ground about even with the steam dome and air pump.' He was unconscious and bleeding at the mouth. He died within a few minutes.

The steampipe connection had not been re-engaged. There was a little mark on the side of the pump, it 'was just like you rub a rag over a dirty place.' There were some marks up around the steam dome, 'they were just marks in the grime that settles on a locomotive around the steam dome--and there were some marks down from the steam dome.' There was a 'wrench or something lying up there * * * and there was blood down (on the ground) opposite right from the steam dome, and his cap was laying down there.'

Plaintiff alleged, and the trial court submitted to the jury, the negligence of defendant in failing to provide plaintiffs decedent with a reasonably safe place to work, such negligence being pleaded and submitted by allegations and hypotheses that the engine was 'slick, dirty and greasy'; that defendant had failed to provide 'a suitable and adequate ladder, platform, or other tool or device with and whereby he could have reached said connection as described in evidence without climbing upon said engine'; and that defendant had failed to provide a means 'of making said connection between the pipe on said engine and said overhead pipe - - - so that said connection could have been made by deceased and others from the ground level.' These several particularized submissions of the negligence of defendant in failing to provide plaintiff with a reasonably safe place to work were submitted in the conjunctive. Defendant-appellant asserts the evidence was insufficient to sustain any of the particularized submissions, and error is assigned in plaintiff's Instruction No. 1 because of the hypotheses of these specified faults and also in the refusal of defendant's requested instructions withdrawing each and all of the specific submissions for the jury.

Defendant-appellant urges there was no evidence from which it could be reasonably inferred the deceased fell from the top of the engine,--'no one saw him fall, and if he did fall, where he fell from,' if he made the marks or scratches on and down from the steam dome and on the air pump in falling, 'they could have been made in falling before he got to the top of the boiler,' or others 'may have made them in getting up on the boiler or in coming down'--how or what made them 'is the merest conjecture'; and defendant-appellant asserts that, even had the evidence disclosed deceased was engaged in work in line with his duty and fell from the top of the engine, there was no substantial basis for a finding his fall was caused by any negligence of defendant. It is argued 'there was nothing wrong with any part of this engine'; the running boards together with the iron handrails contemplated that employees would use them to keep the engine operating--there is no reason why deceased 'could not have held on to them if such were needed to keep his balance.' It is said the 'safe place to work rule' does not apply under all conditions as in the case of 'a person misstepping or losing his balance while moving on or over an engine.'

In determining if there was sufficient evidence to justify a trial court's submission of a plaintiff's case to the jury, we consider the evidence from a standpoint favorable to plaintiff.

In Tatum v. Gulf, M. & O. R. Co., 359 Mo. 709, 223 S.W.2d 418, this court stated that the question of the submissibility of a plaintiff's case in an action under the Federal Employers' Liability Act is to be approached in the light of the recent decisions of the Supreme Court of the United States. In recent cases the Supreme Court of the United States has said the Act does not make the...