Nance v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 13 June 1950
• Docket Number: No. 1,No. 41434,41434,1
• Citation: 232 S.W.2d 547,360 Mo. 980
• Court: Missouri Supreme Court
• Parties: NANCE v. ATCHISON, T. & S. F. RY. CO

Page 547

232 S.W.2d 547

360 Mo. 980

NANCE v. ATCHISON, T. & S. F. RY. CO.

No. 41434.

Supreme Court of Missouri, Division No. 1.

June 13, 1950.

Motion for Rehearing or to Transfer to Court en Banc

Overruled July 10, 1950.

Motion for Rehearing on Per Curiam Opinion or to Transfer to

Court en Banc Overruled Sept. 11, 1950.

Clarence C. Chilcott and Walter A. Raymond, Kansas City, for appellant.

John H. Lathrop, Winston H. Woodson, Sam D. Parker, James F. Walsh and Donald H. Sharp, Kansas City, for respondent.

LOZIER, Commissioner.

Appellant (hereinafter referred to as plaintiff) sued respondent (hereinafter referred to as defendant) for damages for personal injuries. Verdict and judgment for plaintiff for $18,000 were set aside, judgment was entered for defendant and its alternate motion for new trial was sustained. Plaintiff appealed.

The initial issue is whether plaintiff made a submissible case. At the time he was injured plaintiff was, and for 17 years prior thereto had been, a switch foreman for defendant. The work of his crew included 'switching the Red Star Mill job,' at Wichita, Kansas. This mill, owned and operated by a corporation (hereinafter referred to as the company) was a grain handling and processing plant adjacent to defendant's right-of-way and tracks. Defendant had constructed and was maintaining, both at the cost of the company, switch tracks in the mill area. These were the property of the company. Defendant inspected the tracks every morning. Plaintiff's crew would switch loaded grain cars into and empty cars out of the mill over these tracks. Also empty cars were switched in for loading with mill products. The cars were 'spotted' one night by defendant's crew, unloaded or loaded the next day by the company's employees and removed the next night by the switch crew.

Between some of the tracks were steel docks used in loading and unloading cars. The docks and the tracks immediately adjacent were on concrete bases over underground pits covered by open gratings. The docks were 10 feet long, about 4 feet wide, and 4 feet high. At each end was a heavy steel post and 2 smaller steel braces. These supported the unloading machinery 11 or 12 feet above the dock floor, including a 15 h. p. electric motor, a hoist and cables.

Cars were unloaded by cable machinery powered by the overhead motor. The grain doors were wrenched loose and the grain scooped out of the car doorway, upon the gratings through which it fell into an underground hopper below which were conveyor belts. The belts were operated by an underground 15 h. p. motor, some 50 feet distant, bolted to cement blocks. In the process, loose grain was often spilled on the dock floor.

'Grain doors' were board structures nailed across the doorway of a loaded grain car. They were 6 or 8 feet long and about 1 1/2 or 2 inches thick. A grain door was about 20 inches wide and a half grain door about 10. After being removed from the car the doors were generally leaned against the posts or braces at the ends of the dock. Paint on the posts and braces was worn off where the doors had been leaned against them. Sometimes the doors were leaned against the side of the car while the grain was being dragged out. The doors were thrown back into the empty cars. This had been the usual and customary practice for many years.

The docks, gratings, machinery and equipment were owned, maintained and operated by the company. All loading and unloading of cars was done by its employees. Defendant's employees, including plaintiff, took no part in these operations.

There was evidence that the movement of a train on either track in the immediate vicinity would cause both the ground and the dock to vibrate, and that the operation of the unloading machinery would cause vibration of the dock. But there was no evidence that the unloading machinery, including the overhead and subsurface motors, was in operation when plaintiff was injured. Plaintiff did not say that it was; he said he did not know. Considering all the circumstances (that it was after the close of the mill workday, that there were no cars on track 5, that all of the cars on track 4 were loaded, and that no company employees were on or near the dock), we necessarily conclude that the mill machinery was not being operated. Nor was there evidence that the ground was vibrating from the train movement that afternoon. Plaintiff did not testify that it was, and neither he nor the other members of his crew knew where the train was at that particular time.

Tracks 4 and 5 ran north and south and this particular loading dock was between them, lengthwise. On that day there were 7 or 8 loaded cars on the east or No. 4 track, with the south car 'spotted' at the dock, its south end extending beyond the dock. There were no cars on the west or No. 5 track. Plaintiff's crew backed the engine on track 4 from the south and stopped about 6 feet from the cars. Plaintiff noted the car numbers in his 'spot book,' directed the crew to move the cars out, and then walked, northwesterly, toward the dock and track 5. At that time the engine and the cars were moving south on track 4, but how far south they had gone, or just where they were or at what speed they were moving does not appear.

The time was about 5 p. m., 'broad daylight,' September 3, 1935. While standing on solid ground (that is, not on the gratings) apparently 1 or 2 feet both south and east of the southwest corner of the dock, and while writing in his book, plaintiff was struck on the side of the head by some object. He did not know what the object was. He was knocked down and dazed. When he arose, his nose and left ear were bleeding. He saw lying on the ground a half grain door which he had not seen before. He also saw wheat grains on the dock floor and 'looked up and discovered these marks on the iron posts where grain doors had been leaned.' (None of the exhibit photographs of either party showed marks on the south post or braces where there was a 'control box' on the inside of the post. There was no control box on the north post.) He did not know whether a grain door had been on the dock. He stated that he could have seen the door if it had been there and he had looked, but that he did not look because he was writing and his head was down. There was no evidence that anyone else had observed a door on the dock that afternoon, nor was there evidence as to when a wheat cargo had been last unloaded at the dock.

Plaintiff proved this practice and custom: In unloading the cars, the grain doors were removed and leaned against the posts and braces, the wheat cargo was scooped out and the doors placed in the empty cars. The testimony of plaintiff, two other members of his switching crew (and also the testimony of employees of defendant and of the company established this practice. There was some testimony that occasionally the doors were laid in stacks on the ground next to a building, 25 or 30 feet away, but this was the only evidence of deviation from the custom of throwing them back into the cars. There was no evidence whatever that the doors were ever left on the docks after the cars were unloaded. Plaintiff testified that, for many years, in performing his work he had noticed the doors leaning against the posts or braces, but he did not state that he ever observed this when there were no cars on the adjacent tracks or when his crew was switching in the area. Plaintiff had never seen a door fall off a dock and defendant had never warned him that doors might be left there and might fall upon him.

Plaintiff was injured before the 1939 amendment barring assumption of risk as a defense to liability, 45 U.S.C.A. Sec. 54. The contributory negligence diminution of damages provision, 45 U.S.C.A. Sec. 53, was then, as now, in effect. Had the cause been pleaded and submitted under the Federal act, defendant would have been entitled to the benefits of these sections. See Great Northern Ry. Co. v. Leonidas, 305 U.S. 1, 59 S.Ct. 51, 83 L.Ed. 3; and Chicago, R. I. & P. Ry. Co. v. Wright, 239 U.S. 548, 36 S.Ct. 185, 60 L.Ed. 431. However, plaintiff expressly pleaded the Kansas statutes which deprived defendant, an employer rejecting that state's workmen's compensation act, of its assumption of risk and contributory negligence defenses. Kans.R.S.1935, Sec. 44-544. No instructions were offered or given as to these matters. The parties agree here that the cause was submitted under the Kansas law and not under the Federal act. Plaintiff's cause of action is therefore governed by Kansas law except as to procedural matters. Hall Motor Freight v. Montgomery, 357 Mo. 1188, 212 S.W.2d 748, 2 A.L.R.2d 1292; Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626; and Philippi v. New York, C. & St. L. R. Co., Mo.App., 136 S.W.2d 339.

Plaintiff now contends that he made a submissible case under the Federal act. Conceding that his main instruction 'does not submit and require the jury to find facts establishing plaintiff's engagement in interstate commerce at the time of the accident,' he argues that he pleaded and proved, 'as a matter of law,' a case under the Federal act. However, having chosen to submit his case under the law most favorable to him, plaintiff cannot properly urge another theory here. This court reviews a case upon the theory upon which it was tried and determines its submissibility only upon the theory upon which it was submitted to the jury. Hutchison v. Thompson, Mo.Sup., 175 S.W.2d 903; and Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570.

In Fishburn v. International Harvester Co., 157 Kan. 43, 138 P.2d 471, the Supreme Court of Kansas reasserted the principles relating to the employer's duty to furnish a safe place in which to work. There, as here, the employer had rejected the state's workmen's compensation act. These principles are well summarized in Atchison, T. & S. F. Ry. Co. v. Wagner, 33 Kan. 660, 7 P. 204: As between a railroad company and...