Odell v. St. Louis-San Francisco Ry. Co.

• Decision Date: 02 March 1926
• Docket Number: No. 3876.,3876.
• Citation: 281 S.W. 456
• Parties: ODELL v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

281 S.W. 456

ODELL v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3876.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Homer Odell against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

E. T. Miller, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

Hal H. McHaney and T. R. R. Ely, both of Kennett, for respondent.

BAILEY, J.

Plaintiff seeks damages for personal injuries received by him while working as a section hand on defendant's railroad at or near While Oak in Dunklin county. The petition charges negligence in the following particulars, viz.: That defendant's foreman in charge of the section ordered him to work in a place that was not reasonably safe; that plaintiff complained of the condition, and, relying on the assurance of defendant's foreman that the dangerous condition would be remedied, continued to work; that defendant failed to provide a reasonably safe place in which plaintiff was required to work, but knowingly permitted a dangerous condition to continue, after its foreman had promised to remedy same. The answer contains a general denial of the material allegations of plaintiff's petition, and also pleads that plaintiff was employed, at the time of his alleged injury, in interstate commerce, and assumed the risk, danger, and hazards incident to his employment, thus invoking the so-called federal Employers' Liability Act (U. S. Comp. Stat. §§ 8657-8665). There was a further plea of contributory negligence, and that the injury was the result of an accident. On trial to a jury, verdict and judgment was for plaintiff in the sum of $1,750, from which judgment defendant has appealed.

Defendant first assigns error in the overruling of its instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case. Defendant offered no evidence, but stood on its demurrer.

In reviewing this demurrer it is well to state the familiar rule, so often reiterated, that we must accept as true and consider the evidence most favorable to plaintiff, together with every reasonable inference which a jury might draw therefrom in plaintiff's favor. Ross v. Hoffman (Mo. App.) 269 S. W. 679. With that rule "before us, we shall set forth such evidence as seems to be material to the issues. The evidence should be considered in the light of certain other rules of law involved in this case. The section on which plaintiff was working, while a part of a branch railroad, of defendant company, was used in hauling passengers and freight from Cape Girardeau and points north to Hayti, Mo., and on into Arkansas and Tennessee. That defendant was therefore engaged in interstate commerce is not questioned. Likewise, since plaintiff's duties required him to help in repairing and inspecting defendant's track over which interstate commerce was carried, and since the particular work in which he was engaged at the time he was injured was so closely related to the work of furthering interstate commerce "as to be practically a part of it," there is no doubt plaintiff was, as an employee, engaged in interstate commerce. Therefore the rule as to asumption of risk, under the federal Employers' Liability Act, applies, unless the particular facts in this case render it inoperative. Manes v. St. Louis, S. F. Ry. Co., 220 S. W. 14, 205 Mo. App. 300; Wagner v. Railroad Co., 232 S. W. 771, 209 Mo. App. 121; Pedersen v. Railroad, 33 S. Ct. 651, 229 U. S. 146, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.

The federal rule as to assumption of risk is thus stated:

"When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master's breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance or until the particular time specified for its performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise." Seaboard Air Line v. Horton, 34 S. Ct. 635, 233 U. S. 492, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, and cases cited.

The evidence tends to prove that at the time plaintiff was injured he was working as a section hand on defendant's railroad at White Oak, Mo. He was 39 years of age, and had had 5 years' experience in doing section work. At the time he was injured, in January, 1924, the section crew on that particular section consisted of the foreman, Fred Bryant, and one other fellow servant, Andy Senters. On the morning of the day of the accident the three men composing the crew went to the section house, where the motor car used in working on the section was kept. The foreman ordered the two men to "go over the south end of the track this morning." It was necessary to move the car from the section house and place same on the main track. There was a track for the motor car leading from the section house east to the main line track. This motor car track was "upon a dump." At the point where the motor car track intersected or came up to the main line track there was also a side track. The two latter tracks ran north and south. The side track intersected, or joined onto, the main track about 30 feet north of the section or toolhouse, and from that intersection turned gradually west, so that, when it reached a point directly east of the toolhouse, where the motor car track intersected it, the west rail of the side track was about S or 10 inches west of the west rail of the main track. This side track had been constructed in 1922. At the point where the accident occurred, the ties reached under, and extended a few inches beyond, the rails of both tracks. Where the motor car track abutted the side track, boards were nailed over the ties so as to permit the wheels of the motor car to be pushed into the space between the rails of the main track, thus facilitating the work of placing the motor car on the main track. At the time the side track was constructed, boards were nailed over the ties for a distance beyond the intersection with the motor car track so that workmen could stand on these boards in moving the ends of the motor car preparatory to placing its wheels in proper position on the main track. These boards, except directly in front of the motor car track, had either rotted or been torn away, so that at the time of the accident there was an unfilled space some 12 to 16 inches in depth between each tie. The dump on which the motor car track was laid was about 15 or 16 inches above the level of the ground. This same condition had existed at that place about 2 years. The ordinary method of placing the motor car on the main .track from the toolhouse track was by the two section men first pushing the car out so that its rear wheels (the car being pushed backwards) were in the space between the rails of the main track. They would then carry the front end around, and, when reaching the proper position, place the wheels on the track_ On account of there being no fill between the ties at this point, the plaintiff and his fellow workmen were compelled to get their footing on the ties rather than stepping in the space between the ties. At the time of the accident the motor car, with its load, weighed about 1,100 pounds. As to the manner in which the accident occurred, plaintiff testified as follows:

"We shoved it out on the main line, and then Senters was to my right, and I was at his left, and we picked up the car, and started around east with it, and there's a terrible jump off there, a hole, and we had to step up on these ties in order to clear the rail with the wheel, and I started to set my foot over the rail, the main line rail and switch rail, and my foot slipped, and I fell backwards. The lower part of my hip hit the rail. You see, the motor car track is up on a dump, and you had to pick that motor car up, and that throwed you to step down 18 or 20 inches, something like that, to get around to the main line, and in order to make it easy and handy, and to clear the rail with the car wheels I had to step up on these ties. There was no dirt between the ties, and there was no dirt whatever in the passageway between the defendant's main line track and the car house track. They have been threatening to fill it in, but hadn't done it yet.

"Q. Just state to the jury how would the fact that there was a spur connection in front of the car house affect you in putting the car on the main track. A. Because we had to step over the two rails, and it is such a long step, and spraddle out so it caused my foot to slip, and when I done that I fell backwards on the rail. I couldn't stand on the ground and clear the rail; and I couldn't do it with the wheel of the car."

On cross-examination, plaintiff testified he had acted as foreman on this section at various times for short intervals, in all about 2 months, and that he had run the car there twice a day with the same dangerous condition over a period of 2 years.

Plaintiff further stated that there was "a little skim of ice" on the tie which caused his foot to slip. The ice had formed the night before. As to the foreman directing him to do the work, he testified as follows:

"He didn't direct me how to put the car on the track that morning; he never said how to do it. He said put it on the track; he didn't tell me, but I knew as much about it as he did."

There is abundant evidence that the condition of the track at the point where the accident occurred was not reasonably safe, and had been in the same condition for a period of 2 years—all of which plain...