Rogers v. Reorganization Inv. Co., 27069.

• Decision Date: 18 March 1947
• Docket Number: No. 27069.,27069.
• Citation: 200 S.W.2d 563
• Parties: ROGERS v. REORGANIZATION INV. CO. et al.
• Court: Missouri Court of Appeals

200 S.W.2d 563

ROGERS v. REORGANIZATION INV. CO. et al.

No. 27069.

St. Louis Court of Appeals. Missouri.

March 18, 1947.

Rehearing Denied April 18, 1947.

Appeal from St. Louis Circuit Court; James F. Nangle, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Law by William Warren Rogers, employee, opposed by the Reorganization Investment Company, employer, and the Hartford Accident & Indemnity Company, insurance carrier. The Workmen's Compensation Commission awarded compensation, the circuit court affirmed the award, and the employer and insurance carrier appeal.

Affirmed.

John S. Marsalek, and Moser, Marsalek & Dearing, all of St. Louis, for appellants.

William J. Blesse and William Kohn, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for compensation under the Workmen's Compensation Law. Mo.R.S.A. § 3689 et seq. Plaintiff, William Warren Rogers, is the employe, defendant Reorganization Investment Company is the employer, and defendant Hartford Accident and Indemnity Company is the insurer. The commission awarded plaintiff compensation, and the circuit court affirmed the award. Defendants appeal.

Defendants ask for a reversal of the judgment of the circuit court on the ground that there is no competent and substantial evidence to show that the accident resulting in plaintiff's injury arose out of and in the course of his employment.

The evidence shows that defendant Reorganization Investment Company operated an amusement park located on the south side of Oakland Avenue, in St. Louis, known as Forest Park Highlands. On May 29, 1944, plaintiff was working at the park as an attendant in connection with an amusement device called the flying turns, a runway supported by falsework upon which trains of small cars were operated at high speed. On the date stated, plaintiff while on the runway was struck by one of the trains and thereby sustained the injuries for which he seeks compensation.

The flying turns occupied the section of the park extending along Oakland Avenue. The west end of the device was a covered platform where passengers boarded the cars. The cars were carried by means of a sprocket chain eastwardly from the platform up a steep incline enclosed in a dark covered tunnel. The rise from the platform to the upper end of the tunnel was about 50 feet. After the cars reached the high point they became disengaged from the sprocket chain permitting them to descend by gravity along the course of the runway to the east end of the device where they turned and moved west to the platform along a straight section of track on a level with the platform.

There was no brake or other method provided to control the speed of the cars, or to stop them, after they left the sprocket chain until they returned to the platform. The runway from the top of the tunnel to the straight section of track approaching the platform was semi-circular, like a wooden tube with the upper part cut off. In its descent, the train made a series of abrupt horizontal turns and steep rises and dips, and along the way was tilted first to one side and then to the other, thus imitating the movements of an airplane in flight. The length of the runway, if extended out straight, would have been 750 or 800 feet. In descending the runway, the cars moved at a speed estimated at 40 miles per hour. They followed no set course but swooped erratically back and forth from one edge of the tube to the other. Guard rails were installed along the edges to keep the cars from running off. No one could tell the course within the tube that any particular train would follow, this being determined by the different weights in the cars.

Two trains of five cars each were operated on the device, one being loaded at the platform while the other was going around the turns. The ride operator, or starter, located on the platform, controlled the starting of the cars up the incline by means of a number of levers. After the train was loaded, he allowed the sprocket chain to take it up the incline. He could stop the chain instantly by pressing a button within his reach. He did not allow the train to leave the top of the incline until he could see the other train returning to the platform on the straight track. Each train made the circuit in about one and a half minutes from the time it started up the incline until it returned to the platform. The passengers got in immediately at the platform, the time for unloading and loading being about one minute. In addition to the ride operator, or starter, an attendant was stationed on the platform to help passengers on and off the cars. This was the position held by plaintiff. Clifford Bennett was the ride operator, or starter, on the day of the accident. He was plaintiff's immediate superior.

The cars were one and a half to two feet deep. The passengers had to hold on to the sides of the cars to keep from falling out. Hats, caps, purses and other loose articles belonging to the passengers would fall out of the cars while making the rapid descent, and unless retrieved at once were in danger of being crushed by the cars running over them.

Plaintiff testified that one of the duties of his employment was to retrieve such articles; that he had been ordered to do the work of retrieving by Bennett, his immediate superior, as well as by the park manager and the superintendent, and he had gone up the runway for that purpose from 5 to 10 times a day; that passengers would report lost articles to Bennett and sometimes they would report them to plaintiff, and he would go up into the runway to find and retrieve them; that in retrieving lost articles, if a train came while he was in the turns, he would go to a low place in the runway, crawl out until the train passed by, and then crawl back in and go on up to the next low place looking for lost articles; that while doing this the trains were not stopped but continued in operation; that he would walk up through the troughlike runway opposite to the way the cars ran.

Plaintiff was struck about 3:30 or four o'clock in the afternoon, during working hours. He sustained a brain injury, completely erasing his memory of events for a period of about 48 hours preceding the accident and for several days thereafter.

Three witnesses to the accident, passengers on the train which struck plaintiff, testified to facts showing that Bennett knew that plaintiff was on the way up to the runway just before he was struck. They testified that they saw plaintiff signaling to Bennett that he was going up there and saw Bennett nod his head in assent, and saw plaintiff immediately leave the platform and proceed in the direction of the turns; that they saw all of this while the train was standing still at the platform and while they were sitting in one of the cars waiting to be sent around the turns; that after plaintiff had left the platform and was on his way to the runway Bennett released the train of cars and sent it up the track and into the runway.

One of the passengers, Jerry Tucker, a boy 13 years old, testified that the train had just completed making the third turn in the runway when he saw Mr. Rogers 15 feet ahead of the train; that Mr. Rogers was bent over in a stooping position, standing with his hands reaching down in front of him to the floor of the runway with his head bent down and one elbow braced on his knee; that as soon as he saw Mr. Rogers he hollered as loud as he could to look out, whereupon Mr. Rogers ran and grabbed the side of the runway at its high side and tried to pull himself up, but did not get all the way up and was struck by the second car; that as they waited in the car at...