Nickerson v. St. Louis & S. F. Ry. Co.

• Decision Date: 04 May 1910
• Citation: 128 S.W. 826,144 Mo. App. 401
• Parties: NICKERSON v. ST. LOUIS & S. F. RY. CO.
• Court: Missouri Court of Appeals

128 S.W. 826

144 Mo. App. 401

NICKERSON v. ST. LOUIS & S. F. RY. CO.

Springfield Court of Appeals. Missouri.

May 4, 1910.

Rehearing Denied June 6, 1910.

1. MASTER AND SERVANT (§ 112)—INJURY TO SERVANT—NEGLIGENCE.

Any negligence of a railroad company to its servant—whose duty was to clean cars in its terminal yards at night, and who, while descending from a ladder on which he had been cleaning a car, misjudged the distance he was from the ground, on account of the darkness, and, stepping on a car spring, was thrown onto a pile of materials for repairing cars—was only in not furnishing sufficient light, nothing more being shown relative to the spring, and it being the company's custom, known to such employé, to repair cars in such yards, and after doing so to leave material therefor between the tracks, which were 15 feet apart, till needed again.

2. MASTER AND SERVANT (§ 112)—INJURY TO SERVANT—CAUSE OF INJURY.

Though contributory negligence of a servant suing for injury is not pleaded, which it must be to make it available, yet where darkness of the place where he was at work is shown to have been the sole cause of the injury, and that, notwithstanding his master told him not to use his lantern in his work, and did not furnish him with light, he did provide himself with a lantern and used it, but when he moved his ladder, to where in descending it he was injured, he did not move his lantern there, as he might, his injury is shown to be attributable solely to his own negligence, preventing recovery.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by R. M. Nickerson against the St. Louis & San Francisco Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

W. F. Evans and Mann, Johnson & Todd, for appellant. Fielding P. Sizer and Thomas & Hackney, for respondent.

COX, J.

This is a suit for damages for personal injuries sustained by the plaintiff while a servant in the defendant's employ. The cause was commenced in the Jasper county circuit court May 4, 1909, and tried before a jury on July 7th, resulting in a verdict for the plaintiff in the sum of $2,000, and from which the defendant has perfected its appeal to this court.

The defendant at the time herein mentioned was a railroad corporation operating a line of railroad extending from St. Louis to the southwest through the state of Missouri. On the line of its road is the city of Monett, in Barry county, and this city was a division point, at which the defendant maintained terminal yards wherein it made up its trains for the different divisions, repaired cars, cleaned them, and supplied them with water, ice, and coal. The terminal yards and tracks of the defendant at Monett run east and west; and there are a great number of tracks traversing the yard parallel with each other through that portion of the yard adjacent to the passenger depot. The passenger depot is on the north side of the yards and facing south, and running east and west along and in front of the depot are the different tracks and switches upon which the work aforesaid mentioned was performed. In front of the depot and extending for some distance east and west, the tracks are concreted, forming a level surface even with the tops of the rails. Just west of the west end of the concrete, the spaces between the tracks were filled with chats and mining gravel, thereby making a level surface for employés in doing their work in and about the cars. The plaintiff, a man about 55 years of age, and who had lived in the city of Monett about 15 months, was in the employ of the defendant on December 30, 1908, as a car cleaner, and had been engaged in that work for the defendant about two months in its yards at Monett. In addition to cleaning cars, the plaintiff had performed other duties about the station, such as furnishing the cars with ice and coal. At the time complained of, his hours of labor were from 7 o'clock in the evening until 6 o'clock in the morning, with an hour at midnight for lunch. On the evening of December 30th, he commenced work at 7 o'clock, as usual, and had performed certain labors in the yard until midnight. After midnight, he was assigned the task of cleaning a café car standing on the fourth track from the depot, and just at the west end of the concrete walk. In addition to the plaintiff, who was assigned to work on the north side of the car, another employé of the defendant was at work cleaning the south side of the car, and also another one was at work cleaning the inside thereof. The yards of the company were lighted with are lights until midnight but after midnight the lights inside the cars and such lanterns as the employés might carry were the only lights in the yards, except those in the station and other buildings of the defendant. The method of cleaning cars was for the employés to use a ladder about seven feet in length, by standing the same against the side of the car, and then getting on the same and using materials furnished by the defendant therefor. Plaintiff testified: That on the night in question, just after midnight, he proceeded to work upon the said café car which was standing at its usual place in the yard. He took his ladder, material, and a lantern, and commenced at the east end of the car on the north side. After he had cleaned the part of the car within his reach, he came down on the chats, moved his ladder to the west and again went upon the ladder, and cleaned that part of the car within his reach. After he had moved the ladder a couple of times, and had cleaned the windows on the car within his reach, he started to get off the ladder for the purpose of moving it further to the west. That it was very dark, and his lantern was setting up at the east end of the car where he had left it. That, when he got toward the lower steps of the ladder, he looked and thought he was at the bottom step, but could not see on account of the darkness. At this time he was on the third step from the bottom, and therefore it was farther to the ground than he thought it was, and, when his foot did reach the ground, he stepped on the edge of a car spring, and was thereby thrown across a pile of timbers and other material on the walks between the tracks, and received injuries for which this suit is brought. The evidence discloses that the company had for a long time been in the habit of repairing its cars in the yards, and in making the repairs used wrenches, hammers, bars, chisels, blocks, and jacks, and it was a custom, when through with the blocks, jacks, and bars, to stack them up between the tracks, and leave them until they were needed again. The space between tracks 3 and 4 was 15 feet wide, and this space was left in order to have room to work in. The testimony also shows that there were some hydrants, gas plug, and tank standing between these tracks, but a little further west of the point where the plaintiff was injured. On the evening plaintiff was injured some repairs had been made on the café car, and the blocks, jacks, and perhaps the bar had been piled up by the servants of defendant in a narrow pile extending east and...