Osborn v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 07 December 1927
• Docket Number: No. 26221.,26221.
• Citation: 1 S.W.2d 181
• Parties: OSBORN v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Supreme Court

1 S.W.2d 181

OSBORN v. CHICAGO, R. I. & P. RY. CO.

No. 26221.

Supreme Court of Missouri, Division No. 1.

December 7, 1927.

Motion for Rehearing Denied December 30, 1927.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

Action under the Federal Employers' Liability Act by Leo Osborn against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals. On defendant's motion the cause was transferred to the Supreme Court. Judgment reversed.

Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

A. G. Knight, of Trenton, and Mosman, Rogers & Buzard, of Kansas City, for respondent.

SEDDON, C.

Plaintiff seeks recovery under the Federal Employers' Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665) for injuries sustained by him while in the employ of defendant. It is conceded by the parties hereto that the action falls within the purview of the federal act aforesaid, and it was stipulated by the parties at the trial that plaintiff, at the time of his injury, was an employee of defendant and was engaged in interstate commerce. The trial resulted in a verdict and judgment, entered on November 9, 1923, in favor of plaintiff in the sum of $8,000. On November 21, 1923, plaintiff voluntarily remitted the sum of $500 on said verdict, but made no remittitur of the interest which had accrued upon the judgment from the date of entry, November 9, 1923. A new judgment was not entered at or after the time of the filing of the voluntary remittitur, nor was the judgment of November 9, 1923, set aside or modified by the trial court. After unsuccessful motions for new trial and in arrest of judgment, defendant was granted an appeal from the judgment entered nisi to the Kansas City Court of Appeals. On motion of defendant, the Kansas City Court of Appeals entered an order transferring the cause to this court, apparently upon the ground that the record and the judgment from which the appeal is taken disclose that the amount in dispute, exclusive of costs, exceeds the sum of $7,500, the maximum limit of the pecuniary jurisdiction of the Court of Appeals, and hence this court has exclusive jurisdiction of the appeal by virtue of section 2418, R. S. Mo. 1919, and section 12 of article 6, and sections 3 and 5, amendment of 1884 to article 6, Missouri Constitution. The amount in dispute, as disclosed by the one and only judgment entered in the trial court, after crediting the amount of the remittitur thereon, clearly exceeds the pecuniary jurisdiction of the Court of Appeals by the amount of the interest accruing upon the judgment from the date thereof, November 9, 1923, to the date of the remittitur, November 21, 1923. State ex rel. v. Broaddus, 212 Mo. 685, 111 S. W. 508. Hence we must take jurisdiction of the appeal.

The evidence herein discloses that plaintiff entered the employment of defendant on the night of December 25, 1922, and suffered the injury for which he seeks recovery on the night of January 9, 1923. He therefore had been in defendant's employ but 15 days prior to the date of his injury. Plaintiff testified that he then was 31 years of age; that he had been a farmer prior to entering defendant's service, and had lived on a farm all of his life, excepting a few months, when he served in the army during the late World War; and that he had had no previous railroad experience or experience in working about a railroad roundhouse prior to his employment by defendant. He testified that he had never seen or been inside the fire box of a locomotive engine prior to his employment by defendant. He was employed as a "grate man" by the night foreman of defendant's roundhouse, at Eldon, Iowa, and his hours of service were from 7 o'clock at night until 7 o'clock in the morning. It appears from the evidence to have been the method of work, in the operation of defendant's railroad business at Eldon, Iowa, when a locomotive engine came in from a road trip, to run the engine first to the cinder pit where it was turned over to certain employees, known as "fire knockers," whose duty it was to clean the fire and cinders out of the fire box of the engine. The "fire knockers" were furnished by defendant, in the performance of their duties, with long-handled bars, hoes, and rakes, of suitable size and length to enable the "fire knockers" to reach and clean the inside of the fire box of a locomotive of fire and cinders through a door in the rear of the fire box, without going inside of the fire box. It appears that the fire box of the type of locomotive in use by defendant was about 8 feet wide, 12 feet long, and high enough for a man to stand therein. The evidence tends to show that the "fire knockers" performed their duties without going inside of the fire box of the locomotive. The evidence further discloses that occasionally (though it does not clearly appear how frequently) cinders or clinkers remained in the fire box after the "fire knockers" had worked thereon, and that, at times, clinkers would melt or form upon the grates of the fire box in a solid mass, in which condition they were sometimes left by the "fire knockers" and later were removed by the grate men. It was also shown that the "fire knockers" sometimes poured water on the fire in the fire box, which had a tendency to cause clinkers to become cold and brittle on the outside of the mass and to remain hot on the inside. The locomotive engine, according to defendant's method of work, was sent from the "fire knockers" to the roundhouse, where it was next worked upon by the grate men. Plaintiff described his duties as a grate man, thus:

"I was supposed to straighten down the grates, and when the fingers was stuck up or burned together, to knock them so as to straighten them down, make the grates all flat, put up the dump grates and ash pan, and O. K. the engine on the board that my work was done perfectly."

He also testified that, if the grates happened to be melted together, it was necessary for him to get inside of the fire box to perform his duties. If, in order to straighten the grates of the fire box, the "fire knockers" had failed to remove all the clinkers from the fire box, it appears from the evidence to have been the duty of plaintiff, as grate man, to break up and remove such clinkers. Plaintiff testified that, while most of the time the fire boxes had been cleaned of clinkers by the "fire knockers," part of the time they were not cleaned, and "they came in there with heavy cinders and lots of big cinders in them."

"Q. Did they, at other times, come in there with clinkers in? A. Yes, sir.

"Q. What were you instructed to do when they came in that way? What did the foreman tell you to do with reference to getting the clinkers out? A. He told me to go ahead, take them out.

"Q. Was that necessary to do to straighten up the grates? A. They had to be taken out before I could see if the grates were straight or not."

No tools were furnished to plaintiff and the other grate men, in the performance of their work, except an ordinary steel or iron pick and a shovel. On the night of January 9, 1923, the sixteenth day of plaintiff's service, plaintiff was working inside of the fire box of a locomotive, breaking up a clinker or cinder with the pick, when a piece or fragment of the cinder flew off and struck him in the right eye, resulting in the loss of the sight thereof.

The evidence does not clearly disclose the exact size or nature of the clinker which plaintiff was breaking with the pick at the time of his injury. A witness for plaintiff testified that it was "a good big clinker, a great big one." Whether the clinker consisted of a melted mass which was securely and firmly melted or fused to the teeth of the grates, so as to require breaking up and removal by the grate man working inside of the fire box, in order to straighten the grates, or whether the clinker was a part of a loose coal fire, which could have been easily and readily broken up and removed by the "fire knockers," is left to conjecture by the evidence. Neither is there any evidence that water had been poured on the fire in the fire box before plaintiff went to work upon the engine.

Plaintiff testified that, on the Sunday night immediately prior to the Tuesday night on which he was injured, he had been struck on the face by a flying particle or fragment of cinder which he was breaking with the pick on the inside of the fire box of an engine, and that he had complained to the foreman at that time that the work was dangerous. Respecting the conversation between plaintiff and the foreman at that time, plaintiff testified:

"Q. I want you to tell whether or not you ever complained to the foreman about that condition? If you can't remember the words, tell the substance. A. What I said to the foreman when I complained?

"Q. Yes. A. My complaint was to him on Sunday night before I got hurt on Tuesday night.

"Q. Why did you complain to him? A. Because I got hit in the face with a hot cinder.

"Q. Where did you get hit on the face? A. On the chin.

"Q. Now, you say you complained to him; tell the jury what you said to him; if you can't remember the words, give the substance. A. I called him in, took him in and showed him the engine; I told him I didn't like to go in the fire box; I got hit in the face with one, and it was dangerous.

"Q. You say you told him it was dangerous? A. Yes, sir.

"Q. What did he say to you? A. He told me to go ahead do the work the best I could, no danger in it, and he would have the fire knockers do their work better.

"Q. He told you to go ahead do the work there, there was no danger? A. Yes, sir.

"Q. Did you go ahead and do the work? A. Yes, sir.

"Q. Did you rely on what he said? A. Yes, sir.

"Q. You say you did go ahead and do the work after he told you that? A. Yes, sir.

"Q. Then what happened? A. Well, on Tuesday...