Miller v. Gulf, M. & O. R. Co.

• Decision Date: 14 December 1964
• Docket Number: No. 50310,No. 2,50310,2
• Citation: 386 S.W.2d 97
• Parties: August MILLER, Appellant, v. GULF, MOBILE & OHIO RAILROAD COMPANY, a corporation, Respondent
• Court: Missouri Supreme Court

Page 97

386 S.W.2d 97

August MILLER, Appellant, v. GULF, MOBILE & OHIO RAILROAD COMPANY, a corporation, Respondent.

No. 50310.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 11, 1965.

Joseph Cohen, Charles S. Schnider, John E. Shamberg, Joseph P. Jenkins, Kansas City, Kan., James P. Jouras, Kansas City, Mo., for appellant.

William H. Curtis, George M. Wells, Morrison, Hecker, Cozad & Morrison, Kansas City, Mo., for respondent.

EAGER, Judge.

This suit was instituted to recover $200,000 for personal injuries allegedly suffered in a fall on one of defendant's locomotives. The petition charged violations of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., the Federal Safety Appliance & Boiler Inspection Act, 45 U.S.C.A. Sec. 1 et seq. Subsequently plaintiff has also claimed a violation of certain rules of the Interstate Commerce Commission. The specific violations charged will be mentioned later. During the trial plaintiff abandoned his reliance upon the Federal Employers' Liability Act. There was a verdict for defendant and plaintiff has appealed, after the overruling of his motion for a new trial.

There was no controversy regarding the interstate character of plaintiff's work. He was a fireman on defenant's diesel switch engine No. 20, operating in its 12th Street yards in Kansas City, Missouri. He had worked for defendant as a fireman and hostler for approximately two years from 1945 to 1947, but was then furloughed. He re-entered the service in 1953 and continued, except for a period of illness, until the time of his alleged injury on April 11, 1957. He was then 51 years old, a very large man, five feet ten inches in height, but weighing approximately 300 pounds. He had previously engaged in heavy construction work of various kinds. In defendant's service he had frequently worked as a fireman on this particular engine. At the front of the cab of the engine on the left side there was a folding door, about 20 inches wide, which to a gangway or catwalk running along the left side of the engine proper. Outside this door, there was a handhold on the right near the top of the door and a railing on the left which ran along the entire side of the catwalk. Below the doorway there was one step leading down to the catwalk. This was a metal step, roughened or corrugated in its construction, 16 1/4 (or 16 3/4) inches long, and 8 inches wide; at the outer edge a lip projected downward 1 1/2 inches. This step was firmly riveted to a back plate constituting a part of the metal wall. In some of the photographs a portion of the edge of the step looks somewhat more 'shiny' than elsewhere, but from the variation in these exhibits it is impossible for us to tell whether this is the result of wear or of the lighting. Plaintiff's testimony will be noted later.

Plaintiff came on duty at 3:30 p. m.; it was shown both from oral testimony and from weather reports that it had snowed some (the total depth undertermined) from 3:25 p. m. to 8:25 p. m. on that day. The official weather bureau noted 'heavy snow' at 5:25 and at that time the temperature was 29 degrees. At various times the snow was classed as 'light.' Some snow had accumulated on the ground, but it 'didn't stay long.' Plaintiff testified that at the time of his fall the step was wet and 'slick,' but that there was no snow or ice on it; specifically, he described the step as 'wet and wore.' There was testimony from another employee who went on and off he engine that evening that he had not found the step slippery when he used it.

At about 8:00 or 8:15 p. m. the switch engine stopped at the switch shanty for a lunch period. Plaintiff opened the door already described, shoved it back with his left hand, took hold of the door with his right hand, turned 'a little sideways' to get his bulk through the door, and placed his left foot on the step, more or less 'lengthwise' of the step; then, in order to bring down his right foot, he moved his left foot and it slipped off of the step, causing him to fall. He claims severe injuries to his left knee from this fall. On cross-examination he stated that he placed his left foot 'right close to the edge,' that 'I never looked down, and we aint got no lights to see'; that, although he did not look, he did it by feel; that he was attempting to slide his left foot backwards, but he could not say whether he moved it closer to the edge or not; also, that he could not say whether he had ever previously noticed that the step was slippery. He further testified: that as he slipped he reached unsuccessfully for the grab iron, and when he fell he heard his knee 'pop'; that he managed to get off the engine, eat his lunch and finish his shift, although his knee was swollen and painful. On the next day he reported to physicians of the Missouri Pacific Hospital Association and a long series of treatments, observations and operations began. It was his contention that at the time of trial, nearly six years later, he was totally and permanently disabled, and there was substantial evidence of this.

There was evidence for defendant that two days after the fall plaintiff had stated to his general foreman that he had 'slipped on the snow getting off the engine'; the history given by him to the Missouri Pacific Hospital Association included a statement that 'I was getting off the engine. There was snow on the steps, which caused me to slip and wrench my left knee.' The history given at a Chicago hospital was: 'April 11, 1957, slipped on railroad engine in snow.' In a signed statement given by plaintiff to defendant's claim agent he stated that 'due to this snow collecting on the step I slipped and fell * * *,' and later he again made substanially the same statement in writing. Plaintiff had stated to defendant's shop supervisor two or three weeks after his fall, according to that witness, that he was getting off the back of the engine (where there was also a ladder) and that his foot had 'slipped on the ice and snow on the ground.' There was also evidence that upon regular inspections of the entire engine no defects were found and reported.

The specific charges of negligence were in substance: the maintaining of a worn, slick and slippery metal step, and the failure to discover and correct it; the use of an unsafe locomotive; the failure to warn plaintiff and the failure to provide adequate lighting; also (apparently directed at the FELA phase) that defendant had failed to provide tools and equipment to clean snow and accumulated precipitation from the step.

We relate briefly one phase of the very extensive medical testimony, since it involves a controverted issue. This evidence showed very clearly that plaintiff had a severe and long-standing osteoarthritis in his left knee (and probably in his right knee) when he was examined on the day after the accident, and thereafter. Many X-rays confirmed this. According to at least one of the witnesses, this had been further complicated by gout. In 1956 plaintiff had been attended and treated for pain in his feet and ankles, edema in his ankles and legs, and pain in his knees; he had been put on a diet for reduction of his weight, with little success. He was off work from January until June of that year. Some of the medical witnesses thought that the effect of the fall of plainitff's left knee was minor and that there was no lasting result from it; that his real difficulty merely came from the long-standing osteoarthritis, complicated by the wear and tear or chronic trauma of bearing such enormous weight on his knees and ankles over a period of years; that the left knee joint was simply worn out and useless; also, that his surgical operations, and finally a complete stabilization of the left knee, were so caused. All of the doctors agreed that plaintiff's weight was a materially adverse factor. Some of the medical witnesses testified that an accident or sprain could or might activate such a condition of arthritis in the knee; some testified that either the metal rod inserted for stabilization of the knee, or the surgical procedure generally, might have had some relationship to a condition of thrombophlebitis for which plaintiff was treated on different occasions and for somewhat lengthy periods in 1961 and 1962; others said not. Based on this controversial medical testimony, along with hospital records, X-rays, etc., there was an issue as to whether or not the alleged fall aggravated the pre-existing conditions to any substantial extent, or whether plaintiff's subsequent and final condition was due to the natural progress of those ailments and diseases.

Plaintiff's three Points in his brief all involve alleged errors in instructions. The first is directed at defendant's Instruction No. 8, which was as follows: 'He Court instructs the jury that even if you find and believe that plaintiff slipped and was injured on April 11, 1957, on the step described in Instruction No. 1, nevertheless, if you further find and believe that plaintiff put his left foot down on said step and that he then moved his left foot to make room for placing his right foot on the same step and that his left foot slipped and if you further find and believe that plaintiff did not look at the step as he was putting his left foot on it and moving his left foot, and if you further find and believe that plaintiff's manner of putting his left foot on said step and moving his left foot on said step was negligence, and if you find and believe that such negligence was the sole cause of plaintiff's slipping and injury and that plaintiff's slipping was not due to any improper and unsafe cndition of said step, as submitted in other instructions of the Court, then plaintiff is not entitled to recover, and your verdict must be for defendant, Gulf, Mobile & Ohio Railroad Company.

'You are instructed that by the term 'negligence', as used in this...