Martin v. Wabash Railway Co.

• Decision Date: 09 July 1930
• Docket Number: No. 27668.,27668.
• Parties: LULU B. MARTIN, Administratrix of Estate of ALEXANDER MARTIN, v. WABASH RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

30 S.W.2d 735

LULU B. MARTIN, Administratrix of Estate of ALEXANDER MARTIN, v. WABASH RAILWAY COMPANY, Appellant.

No. 27668.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Ralls Circuit Court. — Hon. Vernon L. Drain, Judge.

REVERSED AND REMANDED.

Homer Hall, J.F. Barry and Mahan, Mahan & Fuller for appellant.

(1) The court erred in overruling the demurrer to the pleadings and the evidence, and also erred in refusing to give instruction which was in the nature of a demurrer to the pleadings and all of the evidence. (a) The plaintiff seeks to recover under the so-called Federal Employer's Liability Act wherein the laws of the State are superseded by Federal acts and Federal decisions. Mandou v. N.Y., N.H. & H. Railroad Co., 223 U.S. 1, 56 L. Ed. 327. (b) The plaintiff cannot recover in the absence of negligence on the part of the defendant, and except as specified in Paragraph 4 of the act, the employee assumes the ordinary risk of his employment, and when obvious or fully known and appreciated by him, the extraordinary risks and those due to negligence of his employer and fellow-employees. Boldt v. Pennsylvania Railroad, 245 U.S. 441, 62 L. Ed. 385; Chesapeake & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L. Ed. 914. (c) If upon an examination of the record, it is found that as a matter of law, the evidence is not sufficient to sustain the essential findings of fact, the judgment will be reversed. Chicago, M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 70 L. Ed. 1041. (d) Plaintiff had knowledge of the switching practice followed in the yard and that engines and cars were moving about the yard at all times. The movement in question carried no unusual hazard. He knew how the switching was done there. There was no departure from the practice generally followed. Defendant was not in duty bound to give him warning. The members of the switching crew had a right to believe that he would keep out of the way of the backing engine. Aerkfetz v. Humphreys, 145 U.S. 418, 36 L. Ed. 758. (c) Plaintiff was familiar with the yard, the location of the tracks, the movement of the engines and cars. He had been employed for two years in this same yard at this same work. The danger was obvious and must have been fully known and appreciated by him. He assumed the risk. Boldt v. Penn. Railroad Co., 245 U.S. 441, 62 L. Ed. 385; Chesapeake & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L. Ed. 914; Ill. C. Railroad Co. v. Ackerman, 76 C.C.A. 13, 144 Fed. 959. (f) It was the duty of the plaintiff not to place himself in a position of danger. He had 5½ feet in which to work between the overhanging of 591 when it passed and the overhanging of train 95. He testified that it was his intention to place himself in the clear between the tracks. By this he admitted that he realized and appreciated the danger of engines and trains passing on the main line track. Engine 591 approached with headlight burning and bell ringing, the plaintiff had not gotten himself in the clear and was struck. He cannot recover. Toledo, St. L. & Western Railroad Co. v. Allen, 276 U.S. 165, 72 L. Ed. 513. (2) The court erred in giving plaintiff's Instruction 1. It allowed a recovery if the jury found that the agents and servants of the defendant in charge of said switch engine, carelessly and negligently failed to exercise ordinary care to look out for the safety of plaintiff and to render him reasonably free of the danger of being struck by said switch engine, while plaintiff was engaged in the performance of his duty as aforesaid. The defendant owed plaintiff no such duty. Toledo, St. Louis & Western Railroad Co. v. Allen, 276 U.S. 165, 72 L. Ed. 513; Seaboard Air Line v. Horton, 233 U.S. 492, 58 L. Ed. 1062. (3) Under the Employers' Liability Act, the employee assumes all risks incident to his employment and also those extraordinary risks arising through the negligence of the employer which are open and obvious or of which he has occasion and chance to become aware. Boldt v. Penn. Railroad, 245 U.S. 441, 62 L. Ed. 385; Woosley v. Ry. Co., 274 S.W. 874; McIntyre v. Railroad Co., 286 Mo. 256; C.B. & Q. Railroad Co. v. Sharlstrom, 195 Fed. 728; Pope v. Terminal Assn., 254 S.W. 46; Pryor v. Williams, 254 U.S. 45, 65 L. Ed. 122.

J.O. Allison and E.L. Alford for respondent.

(1) The court very properly overruled the defendant's demurrer to the evidence when offered at the close of plaintiff's case, and when again offered at the close of all the evidence, and this even though the rules and decisions of the state court in cases under the Federal Employers' Liability Act, so far as the substantive law goes, are superseded by the Federal Act and the Federal decisions. (a) The employee assumed only the ordinary risks incident to his employment, and did not assume the extraordinary risks and those due to the negligence of his employer except in such cases where such extraordinary risks or risks arising from negligence were fully known and appreciated by him, or where such risks were so obvious that he must have known. The risks in the instant case were extraordinary and arose from negligence, and were of such character that the plaintiff could not possibly have known of them prior to the accident. The burden of proving assumption of the risk was upon defendant and unless the evidence in support of it was clear and free from contradiction the demurrer was properly overruled. Chesapeake & O. Railroad Co. v. Proffitt, 241 U.S. 462; Kanawha & M. Railroad Co. v. Kerse, 239 U.S. 576; Brimer v. Davis (Mo. App.). 245 S.W. 411; Chesapeake & O. Railroad Co. v. DeAtley, 241 U.S. 310; Westover v. Ry. Co. (Mo.), 6 S.W. (2d) 848; McIntyre v. Frisco Ry., 286 Mo. 257; Oglesby v. Ry. Co. (Mo.), 1 S.W. (2d) 178. (b) In view of the peculiar and engrossing duty of the plaintiff in inspecting the moving train and his known inability and opportunity to guard himself against danger, the engineer and the switching crew were guilty of negligence in running the switch engine down upon plaintiff while he was so engaged, without warning and in the manner disclosed by the evidence. Chesapeake & O. Railroad Co. v. Proffitt, 241 U.S. 462; Erie Railroad Co. v. Purucker, 244 U.S. 320; Brimer v. Davis (Mo. App.), 245 S.W. 410; Southern Ry. Co. v. Smith, 205 Fed. 360; Westover v. Ry. Co., 6 S.W. (2d) 846. (c) The true test in determining the question of negligence is not whether the switch engine was handled in the usual and ordinary way, but whether such engine was handled with ordinary care. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence whether it is usually complied with or not. Texas & P. Railroad Co. v. Behymer, 189 U.S. 468; Wabash Ry. Co. v. McDaniels, 107 U.S. 454: Texas & P. Ry. Co. v. Archibald, 170 U.S. 665; Chesapeake & O. Railroad Co. v. Proffitt, 241 U.S. 462. It is always the duty of the employer to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed may be reasonably safe for the employee, and this includes care in establishing a reasonably safe system or method of work. Chesapeake & O. Railroad Co. v. Proffitt, 241 U.S. 462; Seaboard A.L. Railroad Co. v. Horton, 233 U.S. 492. (d) Whatever knowledge plaintiff had of the switching practices followed in the yard, he knew that warnings were given, and among other warnings, the practice of ringing the bell on the switch engine. There was no uniform and unvarying custom of moving the switch engine to do the work on the rear end of train No. 95. Knowledge of the engrossing character of plaintiff's duties being performed at that instant will be imputed to defendant, and under these circumstances it was defendant's duty to exercise care in looking out for plaintiff's safety. He was subjected to an extraordinary risk, and a risk arising from defendant's negligence, of the existence of which unusual risk plaintiff was entirely unconscious. Chesapeake & O. Ry. Co. v. DeAtley, 241 U.S. 310. (e) If plaintiff by inadvertence, or even by a complete disregard for his own safety, carelessly placed himself in the path of the engine, he was at most guilty of contributory negligence, and that avails appellant nothing under the provisions of the Federal Employers' Liability Act. There is a sharp line of demarcation between assumption of the risk and contributory negligence. The one is a defense and the other is not. Yazoo & Miss. Railroad Co. v. Wright, 235 U.S. 376; Kippenbrock v. Railroad, 270 Mo. 479; Seaboard A.L. Railroad Co. v. Horton, 233 U.S. 492. (f) The employee is not required to exercise even ordinary care to discern extraordinary risks, or risks arising out of the negligence of the employer. Knowledge will not be imputed to him unless the defects are plainly observable. Westover v. Ry. Co. (Mo.), 6 S.W. (2d) 848; McIntyre v. Frisco Ry., 286 Mo. 234; Texas & P. Ry. Co. v. Archibald, 170 U.S. 665. (2) Plaintiff's Instruction 1, in authorizing recovery if the jury found that the servants of the defendant in charge of the switch engine carelessly and negligently failed to exercise ordinary care to look out for the safety of the plaintiff and to render him reasonably free from the dangers of being struck by the switch engine while engaged in the performance of his peculiar and exacting duty, was not erroneous. The defendant owed plaintiff the duty of furnishing him a reasonably safe place in which to work and this includes a reasonably safe system of operation of its instrumentalities. Chesapeake & O. Railroad Co. v. Proffitt, 241 U.S. 462; Seaboard A.L. Railroad Co. v. Horton, 233 U.S. 492. When the switch engine was approaching plaintiff at the rate of speed and in the manner shown by the evidence and under the circumstances revealed, it was the duty of the defendant's servants in charge of such switch engine to give plaintiff warning, and when defendant's servants were...