Morris v. Pryor

• Decision Date: 17 November 1917
• Citation: 198 S.W. 817,272 Mo. 350
• Parties: ABRAHAM MORRIS v. EDWARD PRYOR, Receiver of WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

198 S.W. 817

272 Mo. 350

ABRAHAM MORRIS v. EDWARD PRYOR, Receiver of WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri

November 17, 1917

Appeal from Randolph Circuit Court. -- Hon. A. H. Waller, Judge.

Reversed.

J. L Minnis, N. S. Brown and J. A. Collet for appellant.

Defendant's demurrer to the evidence should have been sustained, because (1) There was no proof of actionable negligence of the defendant. Railroad v. Newell, 196 F. 868; Tuttle v. Railroad, 122 U.S. 189; Reece v Railroad, 239 U.S. 463; Miller v. Railroad, 185 Mich. 432; Haring v. Railroad, 137 Wis. 367; Eliott v. Railroad, 204 Mo. 17; Coin v. Lounge Co., 222 Mo. 506. (2) Defendant furnished to plaintiff a proper and safe place in which to perform his duties, and he voluntarily selected a dangerous place in which to perform the same, and was thereby injured. Cases supra; White, Personal Injuries, sec. 358; Moore v. Railroad, 146 Mo. 572. (3) The maintenance of the spur track in its relation to the coal bin, as shown by the evidence, was not the proximate cause of plaintiff's injuries. Railroad v. Wiles, 240 U.S. 448. (4) Plaintiff failed to prove a cause of action under the Federal Employers' Liability Act. Railroad v. Behrens, 233 U.S. 478; Railroad v. Carr, 238 U.S. 260; Pennsylvania Co. v. Donat, 239 U.S. 50; Hench v. Railroad, 246 Pa. 1; Molliter v. Railroad, 180 Mo.App. 84. (5) Plaintiff assumed the risk of injuries arising from the alleged improper maintenance of the track. Cases supra; Railroad v. Horton, 233 U.S. 492; Jacobs v. Railroad, 241 U.S. 229; Bradley v. Railroad, 138 Mo. 293; Hager v. Railroad, 207 Mo. 302; Moore v. Railroad, 146 Mo. 572; Railroad v. Jones, 241 U.S. 181; Southern Ry. v. Gray, 241 U.S. 339.

M. J. Lilly and O. C. Phillips for respondent.

(1) There was proof of actionable negligence of defendant. George v. Railroad, 225 Mo. 364; Murphy v. Railroad, 115 Mo. 118; Charlton v. Railroad, 200 Mo. 437; Fish v. Railroad, 263 Mo. 106. (2) Plaintiff was not guilty of negligence in using an unsafe way furnished by the defendant unless the danger was obvious, even though there was a safer place in which he might have worked. Cases supra; Boehm v. Electric Co., 179 Mo.App. 663; Hutchinson v. Safety Gate Co., 247 Mo. 116. (3) The maintenance of the track in such situation that employees were endangered by the proximity of the building was the proximate cause of the injury. Cases supra. (4) Plaintiff proved a cause of action under the Federal Employers' Liability Act. The test is: "Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" Shanks v. Railroad, 239 U.S. 556; Mondou v. Railroad, 223 U.S. 1; Pedersen v. Railroad, 229 U.S. 146; Railroad v. Behrens, 233 U.S. 473; Railroad v. Seale, 229 U.S. 156; Railroad v. Carr, 238 U.S. 260. (5) Plaintiff did not assume risks arising from the improper maintenance of the tracks which were not obvious to him and of which he had no knowledge or notice. Railroad v. Proffitt, 241 U.S. 462; Railroad v. Horton, 233 U.S. 504.

BROWN, C. Railey, C., concurs. Bond, Woodson and Williams, JJ., dissent.

OPINION

In Banc.

BROWN C.

This suit was instituted in the circuit court of Randolph County against the receivers of the Wabash Railroad Company, returnable at the February term, 1914, of that court. The appellant is the only remaining receiver. That portion of the petition charging the circumstances of the injury is as follows:

"That at all the times hereinafter mentioned the above named receivers were common carriers engaged in interstate commerce; that is, the transportation of passengers, goods and merchandise from points within the State of Missouri to points in other States of the United States and from points in other States in the United States to Moberly and other points within the State of Missouri. That defendants now have in the city of Moberly, county of Randolph, State of Missouri, offices and agents in charge thereof for the transaction of their usual business.

"Plaintiff further states that on the 25th day of July, 1913, and for some time prior thereto, he was a switchman in the employ and service of the receivers of the Wabash Railroad Company as aforesaid; that he was employed in and about the railroad yards and tracks operated by the receivers in Moberly, Missouri; that as a switchman it was his duty to and he continually was engaged in handling cars, both interstate and intrastate indiscriminately, and that at the time of his injury hereinafter set forth he was engaged in the movement of cars used both in interstate and intrastate commerce, some of which were loaded with merchandise and poultry from points without the State of Missouri, to Moberly, Missouri, and some of which were being loaded with merchandise and dressed poultry destined to points outside the State of Missouri.

"Plaintiff further states that in connection with the aforesaid railroad yards and lines of railway, defendants operated and maintained in Moberly, Missouri, a sidetrack or spur track extending from the yards and main line of said railroad company up to and past a coal bin belonging to the Moberly Electric Light Company. That the side of the coal bin adjacent to the said spur or side track extended in a straight line while the said spur or side track maintained and operated by the defendants herein extended in a curve, both before and while passing the said coal bin; that the construction of said coal bin and track in reference to each other was such that a car standing at said coal bin in a position to be unloaded stood at a distance sufficient to permit a man with perfect safety to stand or move between the side of the car and the side of the coal bin, but that when a car standing as aforesaid was moved forward, that is, toward the connecting tracks of the defendants herein, the curve in the tracks in connection with the straight side of the coal bin caused the side of the car to be brought in toward and close to the side of the coal bin.

"Plaintiff further alleges that on the 25th day of July, 1913, this plaintiff, in the due course and discharge of his employment in the service of the defendants herein, was required to go in upon this spur or side track described herein and remove an empty coal car standing at the side of the aforesaid coal bin in the position hereinbefore referred to; that at the time he was engaged in removing this car and in connection therewith he was engaged in handling and moving six or seven other cars, some of which were being used in interstate commerce at that time. That this plaintiff in person and in the due discharge of his employment and duty as aforesaid, made the coupling between the car standing at the coal bin and the cars which were being handled at the same time; that after making the coupling this plaintiff was standing between the side of the coal bin and the car in a position of apparent safety, the tendency of a moving car to be drawn up against the side of the coal bin not being apparent to a man placed as this plaintiff was. Plaintiff further alleges that he had been in the employ of the defendants herein only for a short time and had never been in on this track before and was not aware of the dangerous conditions existing at that point; that he had never in his twenty years' experience as a switchman seen a building and track constructed in the dangerous manner in which this coal bin and adjacent track were constructed. Plaintiff further states that after making the said coupling and stepping back into a place of apparent safety he, as was his duty, gave a signal to the other employees working with him, to move ahead or out toward the connecting lines of this defendant; that said signal was communicated to the engineer in charge of the engine engaged in moving these cars, and in response thereto the said cars were moved forward, and on account of the conditions hereinbefore described, the car which had been standing at the coal bin moved forward and at the same time the side thereof was quickly drawn in toward the coal bin before mentioned, and this plaintiff, without any fault or negligence on his part, was caught between the side of the moving car and the side of the coal bin and severely injured, as hereinafter more fully set forth. Plaintiff further states that the conditions with reference to the construction of the track and coal bin had existed for a long time and were well known, or by the exercise of ordinary care could have been known, to these defendants. Plaintiff further says that defendants were negligent in constructing and maintaining said spur or switch track with reference to said coal bin in the manner and condition hereinbefore set out, and that he was injured thereby and in consequence thereof."

The answer was a general denial, supplemented by pleas of contributory negligence and the assumption by his employment of the risk of the injury, upon which pleas issue was duly joined.

At the trial during the same term a verdict was returned for $ 10,000, upon which the judgment was entered from which this appeal is taken.

The plaintiff, at the time of the accident, which occurred July 25, 1913, was a switchman employed by the receivers in the Wabash Railroad yards at Moberly, Missouri where he had been working four months and six days. He was thirty-nine years old, had been engaged in that kind of work for nineteen or twenty years, and in his testimony questions neither his experience nor skill. The yards in Moberly were extensive, containing many platforms for receiving and discharging freight, classified as clearance and non-clearance platforms, the latter term being used to describe those so near to the tracks which served them...