Marquardt v. Kansas City Southern Ry. Co., No. 48472

CourtUnited States State Supreme Court of Missouri
Writing for the CourtEAGER; WESTHUES; DALTON; DALTON
Citation358 S.W.2d 49
PartiesErnest H. MARQUARDT, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation, Appellant.
Docket NumberNo. 48472
Decision Date14 May 1962

Page 49

358 S.W.2d 49
2 A.L.R.3d 1311
Ernest H. MARQUARDT, Respondent,
v.
KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation, Appellant.
No. 48472.
Supreme Court of Missouri, En Banc.
May 14, 1962.
Rehearing Denied June 11, 1962.

Page 50

Richard S. Righter, Robert D. Youle, W. H. Bates, Kansas City, for defendant-appellant. Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.

Sylvan Bruner, Pittsburg, Kan., Arthur C. Popham, Kansas City, for respondent.

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Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

EAGER, Judge.

This is a suit under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. for personal injuries allegedly due to defendant's negligence. It is conceded that plaintiff and defendant were engaged in interstate commerce. Plaintiff recovered a verdict for $75,000 which was reduced, by a required remittitur, to $50,000. This appeal followed. The case was first submitted in Division One of this court, where an opinion was written but failed of adoption. The case was transferred to the Court in Banc of the Court's own motion.

While we shall relate the facts in some detail, it will suffice to refer to only parts of the pleadings. Plaintiff, 49 years old at the time of the injury, was employed as a laborer at defendant's diesel shops and yard in Pittsburg, Kansas, where he had worked for some years. The present injury occurred on February 13, 1957. Plaintiff and one Evans worked regularly at servicing, fueling, sanding and otherwise maintaining diesel locomotives under Bill Walker as foreman. As a part of this work, they had regularly unloaded sand from boxcars on a spur track into a horizontal cylindrical tank abutting the track, from which it was blown by air pressure into overhead receptacles which, in turn, fed it by gravity into the diesel locomotives. At some time prior to this injury, a new and larger cylindrical sand tank had been placed along the spur track, buried for about one-third of its diameter; the pipe which was to carry sand to the overhead towers had also been installed. This tank was described as about 8-10 feet long and 6 feet in diameter. It lay generally east and west; the spur track ran generally north and south at the west end of the tank. Earth had been excavated in order to set the new tank in the ground; some of this had been used in the 'backfill,' and apparently the ground had been leveled off. It is not claimed that any holes were left in the surface. The top of the tank was about even with the doorsill of a boxcar. This new tank had just been connected up with the air pressure on the day before plaintiff's injury. This was done by a Mr. Allison, an employee from defendant's water service department, under the supervision of a foreman from that department. In doing this work an air line was run to the sand tank from the air reservoir tank nearby, so that the air would enter through a 'T' at the top of a short vertical pipe welded into the top of the tank near the east end; Allison then removed the 'bleeder' or exhaust mechanism from the old tank and installed it on the new one, where he (so he testified) screwed it firmly into the 'T' on the upright pipe. This particular mechanism consisted of an upright pipe the overall length of which appears (from photographs) to be perhaps a foot and a half or two feet long, an elbow or 'ell,' and a 'bleed' pipe at the top extending out horizontally from the elbow, and described variously as from 2 to 4 feet long. In the upper portion of the upright there was a valve which was opened and closed by a handle. Thus, there were obviously several threaded joints in the total mechanism. It is conceded that the 'bleeder' or exhaust mechanism was supposed to remain stationary when the valve was operated to let air pressure in or out of the tank. There was evidence for the defendant that after this installation was completed about 2:30 p. m. on the day before the injury, the tank and its equipment were thoroughly tested with sand and air pressure and that they operated satisfactorily. Aside from those tests, the use at the time of the injury was the first use shown in the evidence.

Plaintiff, Evans and Walker were working on a shift from midnight to 8:30 a. m.; during the early morning of February 13, 1957, plaintiff and Evans loaded sand from a boxcar into the tank preparatory to blowing it into the overhead receptacles. They had done this work for several years, using the old tank. The loading was done by means of a wheelbarrow and a funnel arrangement.

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One of these men then closed the exhaust valve and air pressure was turned in from the valve at the reservoir tank. After waiting 20-25 minutes for pressure to build up they tried to blow the sand out, but it did not run through the line. The pressure seemed to be normal on the gauge at the air reservoir. The time was about 5:45 a. m., and while it was 'dusk' there was ample light from a floodlight nearby. Plaintiff then got the foreman, Walker from the diesel shop. Walker thought the air pressure might be low and he brought a new air gauge, which he decided to install on the reservoir tank; he shut off the air at the reservoir tank, and told plaintiff to release the exhaust valve on top of the sand tank. Standing at the east end of that tank, plaintiff took hold of the valve handle, 14-18 inches above his head, and pulled it down; immediately the horizontal bleeder pipe started whirling around rapidly, and making a noise like a 'jet plane.' All three men were frightened and they ran; Walker and Evans, standing on the north side of the tank, ran around the end of a boxcar; plaintiff started to run toward the east but slipped and fell when he had proceeded about two feet, with 'one leg back underneath me and down on one hand.' Thereafter he crawled 8-10 feet farther, and the noise stopped. He testified on cross-examination that the ground was wet, and that there was scattered wet clay around the south side and part of the east end of the tank, which had been dug out. It may fairly be said that plaintiff did not state the precise cause of his slipping and fall. In a hypothetical question to plaintiff's expert his counsel hypothesized that he 'slipped there in some clay * * *.' Evans, a witness for defendant, testified on cross-examination that there was some wet clay around the place where they worked. Plaintiff testified directly that he had nothing to do with the installation, inspection or maintenance of the tank, and this was specifically corroborated by Evans and by Walker, the foreman, with reference to the equipment on the tank; there was no controverting testimony on this point. It was also shown without controversy that the exhaust pipe mechanism was supposed to remain stationary when the release valve was operated, and that its movement here was wholly unexplained and unusual. The air pressure ordinarily attained in the tank for blowing sand was 90 to 95 pounds per square inch. Defense witnesses testified in detail concerning the installation and tightening of the exhaust mechanism, to the testing of the tank with air pressure and sand several times, and to the fact that it was operating properly at the end of the preceding afternoon. It was developed at the trial that actually the bleeder pipe was whirling (at the time of the injury) in the direction which tightened it and finally stopped it; none of the three men, of course, could know this at the time.

Plaintiff's petition was in one count; it alleged res ipsa negligence in the sudden and unusual movement of the bleeder pipe. Since there has been no contention that these allegations were not sufficient in themselves, we shall not quote them. In a separate paragraph plaintiff also pleaded as an additional and separate ground of recovery--'that defendant failed to use ordinary care to provide and maintain said premises where he fell and his said working place in a reasonably safe condition, in that said surface where he moved in an effort to escape from the dangers and hazards of said revolving pipe was slick, slippery and dangerous, and his footing thereon was insecure, and the defendant knew or by the exercise of ordinary care would have timely known of all the above facts long enough prior to him slipping and being injured as aforesaid, to have remedied the same and made said premises and his said working place reasonably safe and thereby have prevented him slipping thereon as aforesaid, all of which defendant negligently failed to do, and that the aforesaid negligence of defendant in this paragraph set forth directly contributed to the slipping and falling of plaintiff as aforesaid and to his injuries hereinafter set forth.' The evidence concerning

Page 53

cerning plaintiff's injuries will be discussed later.

The case was submitted on plaintiff's Instruction No. 1, based upon the res ipsa theory. Since much of the present controversy arises therefrom, we quote it, omitting certain noncontested recitals: 'The Court instructs the jury if you believe and find * * * that plaintiff was ordered * * * to turn the lever on the bleed pipe and plaintiff obeyed same, if so, and that immediately thereafter said bleed pipe began swiftly revolving and making a loud noise and violently whirling and thereby created immediate and imminent danger to plaintiff and those near same of being injured therefrom, if you so find, and it thereby necessitated plaintiff and such others hurriedly attempting to escape being injured thereby, if so, and if you find plaintiff was thereby suddenly affrighted and believed and that ordinarily careful and prudent persons in the above-submitted circumstances would have believed, that he and such others were in immediate and imminent danger of being injured by said bleed pipe, if so, and that in attempting to run away and escape therefrom, if so, plaintiff suddenly and involuntarily slipped and his back and body were thereby violently twisted...

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6 practice notes
  • Palenkas v. Beaumont Hosp., Nos. 82083
    • United States
    • Supreme Court of Michigan
    • June 7, 1989
    ...the latter is shown to be an abuse of discretion. Davis v. Graviss, 672 S.W.2d 928, 933 (Ky.,1984); Marquardt v. Kansas C.S.R. Co., 358 S.W.2d 49, 58 (Mo., 1962) (an appellate court should be more reluctant to reduce the amount of damages awarded to a plaintiff in a personal injury action w......
  • Harp v. Illinois Cent. R. Co., No. 49743
    • United States
    • United States State Supreme Court of Missouri
    • July 8, 1963
    ...to those in the cited cases, and others with injuries of a different nature including Marquardt v. Kansas City Southern Railway Co., Mo., 358 S.W.2d 49; Donahoo v. Illinois Terminal Railroad Company, Mo., 300 S.W.2d 461; Wehrli v. Wabash Railroad Company, Mo., 315 S.W.2d 765, certiorari den......
  • City of Kennett v. Akers, No. 59970
    • United States
    • United States State Supreme Court of Missouri
    • April 10, 1978
    ...v. Fed. Res. Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718 (1947), (overruled in Marquardt v. Kansas City Southern Railway Co., 358 S.W.2d 49 (Mo. banc 1962), infra, because it failed to separate two successive and distinct acts of negligence, the failure to warn and barricade the area an......
  • Bratton v. Sharp Enterprises, Inc., BUCYRUS-ERI
    • United States
    • Court of Appeal of Missouri (US)
    • May 31, 1977
    ...only, or (2) pleads general negligence but proves the real and precise cause of injury. Marquardt v. Kansas City Southern Railway Co., 358 S.W.2d 49 (Mo. banc 1962); Hall v. St. Louis Public Service Co., 266 S.W.2d 597 (Mo. banc 1954); Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071,......
  • Request a trial to view additional results
6 cases
  • Palenkas v. Beaumont Hosp., Nos. 82083
    • United States
    • Supreme Court of Michigan
    • June 7, 1989
    ...the latter is shown to be an abuse of discretion. Davis v. Graviss, 672 S.W.2d 928, 933 (Ky.,1984); Marquardt v. Kansas C.S.R. Co., 358 S.W.2d 49, 58 (Mo., 1962) (an appellate court should be more reluctant to reduce the amount of damages awarded to a plaintiff in a personal injury action w......
  • Harp v. Illinois Cent. R. Co., No. 49743
    • United States
    • United States State Supreme Court of Missouri
    • July 8, 1963
    ...to those in the cited cases, and others with injuries of a different nature including Marquardt v. Kansas City Southern Railway Co., Mo., 358 S.W.2d 49; Donahoo v. Illinois Terminal Railroad Company, Mo., 300 S.W.2d 461; Wehrli v. Wabash Railroad Company, Mo., 315 S.W.2d 765, certiorari den......
  • City of Kennett v. Akers, No. 59970
    • United States
    • United States State Supreme Court of Missouri
    • April 10, 1978
    ...v. Fed. Res. Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718 (1947), (overruled in Marquardt v. Kansas City Southern Railway Co., 358 S.W.2d 49 (Mo. banc 1962), infra, because it failed to separate two successive and distinct acts of negligence, the failure to warn and barricade the area an......
  • Bratton v. Sharp Enterprises, Inc., BUCYRUS-ERI
    • United States
    • Court of Appeal of Missouri (US)
    • May 31, 1977
    ...only, or (2) pleads general negligence but proves the real and precise cause of injury. Marquardt v. Kansas City Southern Railway Co., 358 S.W.2d 49 (Mo. banc 1962); Hall v. St. Louis Public Service Co., 266 S.W.2d 597 (Mo. banc 1954); Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071,......
  • Request a trial to view additional results

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