Pulliam v. McDonnell Douglas Corp.

• Court: Missouri Court of Appeals
• Writing for the Court: GUNN; KELLY, Jr., P. J., and WEIER
• Citation: Pulliam v. McDonnell Douglas Corp., 558 S.W.2d 693 (Mo. App. 1977)
• Decision Date: 26 July 1977
• Docket Number: No. 38162,38162
• Parties: Howard PULLIAM, Jr., et al., Plaintiffs-Respondents, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellant. . Louis District, Division Three

Page 693

558 S.W.2d 693

Howard PULLIAM, Jr., et al., Plaintiffs-Respondents, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellant.

No. 38162.

Missouri Court of Appeals, St. Louis District, Division Three.

July 26, 1977.

Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

Application to Transfer Denied Oct. 11, 1977.

Evans & Dixon, Edward W. Warner, Raymond J. Flunker, St. Louis, for defendant-appellant.

Padberg, McSweeney & Slater, R. J. Slater, St. Louis, for plaintiffs-respondents.

GUNN, Judge.

Howard Pulliam was struck by a Norfolk and Western Railroad Company freight train as he was walking between his home and place of employment at the McDonnell Douglas Corporation. Plaintiffs-respondents, as Pulliam's surviving dependent children and former wife, filed claim for death benefits under § 287.240 RSMo. 1969. ¹ The referee's award denied compensation. On application for review of the referee's award, the Missouri Industrial Commission found that Pulliam's death arose out of and in the course of his employment and awarded death benefits to plaintiffs. McDonnell Douglas appealed to the circuit court, and the Commission's award was affirmed; hence, this appeal by McDonnell Douglas.

The controlling issue on this appeal, is whether, for the purpose of awarding workmen's compensation death benefits, the McDonnell Douglas premises extended to the main line railroad track upon which Pulliam was killed. We find that the premises were not so extended and reverse the award of benefits to plaintiffs.

McDonnell Douglas, where Pulliam worked, employed about 26,000 persons at the time of Pulliam's accident. For security measures, the McDonnell Douglas industrial complex is surrounded by a high cyclone fence with numbered gates interspersed to allow access to and from the facilities. On the day of his accident Pulliam, who lived in a trailer court a short distance from McDonnell Douglas, was heading in the direction of gate 44A adjacent to Banshee Road when he was struck and killed by a freight train on the main line track of the Norfolk and Western Railroad Company. From the referee's report, which we find to contain an accurate factual statement, we follow the route which Pulliam took to work on the date of his fatal accident:

"The employee (Pulliam) lived in a trailer court within (a) triangular-shaped residential area to the north of the railroad right-of-way and Banshee Road. On the date of the accident he had left his home to go to work at about 3:35 in the afternoon and had walked a couple of blocks south on Summit Avenue. When he came to the end of Summit Avenue at the railway right-of-way he crossed a small ditch and ascended a slight hill up on to the railway right-of-way. He then crossed either one or two of the northern main Norfolk and Western line. He then proceeded south about ten feet or less, and walked into the side of a moving eastbound Norfolk and Western train on the southernmost of the two Norfolk and Western main tracks. Had he not been fatally injured at this point, his path would have taken him to the southern boundary of the railway right-of-way where he would have descended a fairly-steep path some eight feet down to Banshee Road. He would have crossed Banshee Road and would have gone into gate 44A.

The path leading down from the right-of-way to Banshee Road is one which has obviously been worn by many years of foot traffic. It would be impassable in bad weather, except for a moderate amount of railroad gravel or ballast which covers it. It is obvious that this path has not been constructed, improved or maintained by anybody but is a path worn by pedestrian traffic taking a shortcut between McDonnell gate 44A and the residential area to the north of the tracks. In spite of the fact that there are thousands of employees at McDonnell Douglas, only a relatively small number of people would use this shortcut at any given time. These users would include a few residents of the nearby residential area, a few pedestrians who might have parked their cars in that area, or a few people heading toward the filling stations and bars that are on Lindbergh (Blvd.), some three blocks north of the railway right-of-way."

The following is a graphic portrayal of the accident site showing the route Pulliam was taking to work:

While certain other gates providing access for the McDonnell Douglas facilities along Banshee Road had uniformed guards operating electric traffic controls for traffic across Banshee Road, there was no traffic control signal for gate 44A. Nor was there any cross walk indicated across Banshee Road for pedestrian traffic to cross over for ingress and egress to gate 44A. Gate 48, about 400 feet west of gate 44A, ² had traffic control signals operated by company guards. East of the accident site, where McDonnell Douglas' property extends to both sides on Banshee, an overpass and underpass provide access between the McDonnell Douglas property separated by Banshee permitting pedestrian traffic to travel across Banshee Road without being exposed to the hazards of vehicular traffic. There was no indication that pedestrian traffic was to cross Banshee Road to utilize gate 44A in contrast to certain other gates along the road where there were traffic control signals such as at gate 48, or an overpass or underpass.

There was no evidence to suggest that McDonnell Douglas had any right of control or could interfere with the use of the Norfolk and Western's right-of-way or adjoining property, particularly the residential area in which Pulliam lived or along the route he took to work. It is readily apparent that there was not much that McDonnell Douglas could have done to prevent Pulliam from taking the route he took or from crossing over the railroad main line track on which he was killed. Obviously, a string of parked railroad cars, a fossett and other obstacles did not provide a sufficient barrier, as Pulliam made his way by either crawling under, over or through the parked railroad cars to meet his appointment with death. It is doubtful if any kind of revetment would have sufficiently impeded his forward movement.

Relying particularly on Hunt v. Allis Chalmers Manufacturing Co., 445 S.W.2d 400 (Mo.App.1969); Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507 (1928), and Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366 (1923), the Industrial Commission applied the rule of extension of premises to encompass the Norfolk and Western main line track on which Pulliam was killed. The Commission found that the hazard Pulliam encountered traveling over the railroad tracks to and from work was a risk incident to employment. In so finding, the Commission considered: 1) that the railroad spur line track from the main line entered into McDonnell Douglas property; 2) the location of the gates along Banshee Road and traffic control arrangements for pedestrian traffic across Banshee; 3) that the location of gate 44A across Banshee Road from a foot path offered open invitation to workers to walk across the railroad tracks by use of the foot path; 4) that the use of the foot path by employees was known and permitted without remonstrance, although such use could have been prohibited by the exercise of municipal police power over Banshee Road delegated to the security guards.

The circuit court, relying on Hunt v. Allis Chalmers Manufacturing Co., supra, affirmed the Commission's award.

We first indite a few legal precepts which guide our review of Industrial Commission rulings. As succinctly stated in Webb v. Norbert Marking Construction Co., 522 S.W.2d 611, 614 (Mo.App.1975):

"(T)his court must determine if the award of the Commission is supported by competent and substantial evidence upon the whole record, Mo.Const. Art. V, § 22, V.A.M.S., and all of the evidence and legitimate inferences arising therefrom must be viewed in the light most favorable to the award. We are not at liberty to substitute our own judgment for that of the Commission and may set aside an award only if there is not substantial competent evidence to support the award or if the findings of the Commission are clearly contrary to the overwhelming weight of the evidence."

See also Lindquist v. Container Corporation of America, 537 S.W.2d 676 (Mo.App.1976); Snider v. Green Quarries, Inc., 535 S.W.2d 274 (Mo.App.1976); Homan v. American Can Co., 535 S.W.2d 574 (Mo.App.1976). We are required to review the whole record and reverse or modify awards which are not based on competent and substantial evidence and when such awards could not have reasonably been made. Duncan v. A.P. Green Refractories Co., 522 S.W.2d 639 (Mo.App.1975). We, of course, review the award of the Commission and not the referee's award. Begey v. Parkhill Trucking Co., 546 S.W.2d 529 (Mo.App.1977).

Plaintiffs bottom their right of recovery on § 287.120(1), which subjects the employer to liability for an employee's injury or death "arising out of and in the course of" employment. But it is the plaintiffs' burden to establish that Pulliam's death occurred within the statutory constraints of "arising out of and in the course of" his employment with McDonnell Douglas. As stated in Begey v. Parkhill Trucking Co., supra at 531:

"(A)n injury arises 'out of' the employment if it is a natural and reasonable incident thereof and is the rational consequence of some hazard connected with the employment, and rises 'in the course of' the employment when it occurs within the period of employment, at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment."

The right of recovery is further restricted by § 287.020(6), which provides:

"6. Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of such employment', it is hereby declared not to cover workmen except while engaged in or about the...