Rogers v. Thompson

• Decision Date: 14 November 1955
• Docket Number: No. 1,No. 44595,44595,1
• Citation: 284 S.W.2d 467
• Parties: James C. ROGERS, Plaintiff-Respondent, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 467

284 S.W.2d 467

James C. ROGERS, Plaintiff-Respondent, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company a Corporation, Defendant-Appellant.

No. 44595.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1955.

Motion for Modification of Opinion and for Rehearing or to

Transfer to Court en Banc Denied Dec. 12, 1955.

Harold L. Harvey, Oliver L. Salter and Donald B. Sommers, St. Louis, for appellant.

Mark D. Eagleton, Thomas F. Eagleton, and Leland Jones, St. Louis, for respondent.

VAN OSDOL, Commissioner.

Plaintiff, James C. Rogers, instituted this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for personal injury alleged to have been sustained by him July 17, 1951, when, during the course of his employment, he was burning weeds on defendant's right of way near Garner, Arkansas, and fell at one of defendant's drainage culverts. Plaintiff had verdict and judgment for $40,000 damages, and defendant has appealed.

Plaintiff alleged that he, as defendant's employee, was engaged in burning weeds by the use of a hand torch at a point a short distance north of Garner Crossing; that in so doing he was required to work at a place in close proximity to defendant's tracks whereon trains were passing; and that a train caused the fire from the burning weeds to come so dangerously close to him that he was obliged to retreat and move quickly from the place where he was working and to use as a place of work a part of defendant's right of way that was covered with loose and sloping gravel which did not provide adequate and sufficient footing for plaintiff to thus move or work under the circumstances. Plaintiff further alleged 'that the said method of doing said work and the place of work thus provided became and were unsafe and dangerous and defendant in thus adopting said method and furnishing said place of work, failed to exercise ordinary care and was guilty of negligence and by reason thereof, plaintiff was caused to fall and to be injured thereby, all of which directly and proximately resulted, in whole or in part, from the negligence of the defendant as aforesaid.'

Inasmuch as defendant-appellant's initial contention is that plaintiff failed to make out a case submissible to a jury and the trial court erred in overruling defendant's motion for a directed verdict, we will examine the evidence tending to support plaintiff's claim.

Plaintiff, twenty-four years old when injured, fell and was injured at a culvert approximately two hundred fifty yards north of Garner Crossing, a public crossing over defendant's line. At this point defendant's double-track line lies in a north-south direction. The tracks, consisting of rails and ties resting on gravel or crushed rock ballast, are supported by an earthen 'dump.'

Plaintiff had become the employee of defendant as a section laborer May 21, 1951; and in the morning of July 17, 1951, he with others of the section crew in charge of one Howdershell as foreman had started working near McRae, a short distance south of Garner Crossing. The section men worked until ten-thirty between McRae and Garner Crossing, at which time the foreman directed others of the crew to do some work three or four hundred yards north of the crossing. However, plaintiff was given the task of burning weeds and other vegetation on the shoulder, and on an area two and a half or three feet wide down over the crest of the incline of the dump. Plaintiff was told to begin just north of the crossing and burn the vegetation up to a point several hundred yards north of the crossing. The vegetation was dry. It had been withered and killed by chemicals. Plaintiff was given a torch consisting of a quart container with a spout on one side and a three-foot handle on the other. The spout was stuffed with waste for a wick, and the container was filled with kerosene and 'white gasoline mix.' Plaintiff had not theretofore seen anyone attempt to fire vegetation with that sort of device. He said that normally it is done with a flame thrower wherein the operators sit fifteen or twenty yards ahead of the flame. Flame throwers burn the whole right of way. Plaintiff had seen a flame thrower used. This was long before he was employed by defendant. Plaintiff does not know what the section crew's duty was when the flame thrower was used. Defendant's foreman testified a machine had been used as a flame thrower in burning weeds from 1928 or 1929 to early 1950. The machine caused too much fire. It burned hay, pasture and woodland on properties adjoining the right of way. The section men had to follow along and fight fire. The machine was later converted into a sprayer to kill weeds and after they are killed, the section men burn them. They use a torch or 'something that is handy.' They now have less fire and fire fighting.

Pursuant to instructions, plaintiff had fired the weeds, 'just spots,' along the west shoulder and west side of the incline up to a point thirty or thirty-five yards south of the drainage culvert when a train came from the south on the east (northbound) track.

In firing the weeds, plaintiff had been walking two and a half or three feet from the west ends of the ties supporting the rails of the west (southbound) track. There is a flat place, 'a path,' along there--a shoulder three to three and a half feet wide--between the edge of the sloping ballast and the crest of the dump.

Having heard the train whistle for the crossing and having seen that the train was on the east track, plaintiff quit firing the weeds, set the torch on a tie west of the west rail of the west track and ran northwardly to a point 'right next' to the culvert. He knew the culvert was there. He had noticed it when he 'was running north.' But he paid no attention to it. He had forgotten it at the time. And, ignoring the fire, plaintiff directed his attention to the passing train. Plaintiff knew there would be a 'wind come along behind' a passing train; but, there being a track between the fire and the train, he 'didn't think the wind would affect it too much.' Plaintiff explained how he was injured as follows, 'At the time I thought I was far enough away, that I was plenty far enough to clear myself of the fire or any danger of the fire and it was time to start to watch these journals. So I set my torch down on the end of the tie, and was standing out on the flat surface, watching the train go by. After the train had gotten approximately half or two-thirds of the way back, I felt this heat on my face, on the side of my face. I turned to see what had happened, and it was fire right up in my face. I threw my left arm over my face and started turning to the west, to the north, backing away rapidly from the fire, and that is when I walked in on this culvert and slipped and fell.'

Plaintiff further testified his foreman had instructed that when trains approached the section men were to 'get clear of what we were doing and stand and watch the trains go by for hot boxes. . . . He (the foreman) said at all times he wanted some of (the) men on one side of the track and some on the other.' The foreman had also said, "Don't stand even on the end of the ties or close to the other rail while there is a train on the opposite rail, because the interference, the sound of one train would deaden the sound of another one that possibly would come from the other way." The foreman had said to "always stand on the shoulder." Plaintiff testified there was no flat surface or walkway over the top of the culvert where he was injured. A flat pathway on the shoulder including the ends of culverts was 'supposed to be' kept free of ballast, so 'the men would have a safe place to walk.' He said that 'normally' there is a flat place two or two and one-half feet on which to walk across a culvert; on this one there was nothing but crushed rock--no flat surface. 'It (the ballast) rolled out from under me.' Vibration of trains had shaken crushed rock down onto the culvert so as to make a sloping incline.

Plaintiff, on cross-examination, testified that, when the foreman told him and others of the section crew to suspend their labors when a train approached and watch for hot journal boxes, he did not understand that he, plaintiff, when burning weeds, was to completely ignore the fire. Plaintiff 'never thought he (the foreman) meant anything like that.' Plaintiff said he knew it was his primary duty to watch the fire.

Plaintiff, on cross-examination, further testified as follows,

'Q. When you slipped, you say the gravel slipped out from underneath you? A. Yes.

'Q. This is that portion of the gravel that is right up next to the ties, isn't it? A. Yes, sir.

'Q. There is gravel right up next to those ties everywhere along the railroad, isn't there? A. Yes, sir.

'Q. That is the proper way, I believe, that a railroad is built so far as you know, isn't it? A. Yes. * * *

'Q. You say the section gang keeps a path there for themselves to walk on? A. It is there, yes, sir.

'Q. On both sides of the right-of-way? A. Yes, that's right.

'Q. Every place on the railroad you have been? A. No, sir, not every place.

'Q. Well, all along the right-of-way on that section you worked on? A. Yes; there is a flat surface of dirt other than where the culverts are.

'Q. Other than where the culverts are? A. Yes.

'Q. So anytime you come to a culvert there isn't any. Is that right? A. There is not a dirt, flat surface.

'Q. At any culvert? A. To a certain extent; I mean not like a shoulder is.'

Defendant's foreman testified that, 'generally speaking,' there is a shoulder eighteen inches to three or four feet wide along the outer edge of the ballast. There is no ballast on the shoulder unless 'there would be loose rock kicked out. * * * We clean it up if we have a slide.' The section men keep the ballast 'lined up (approximately) straight.'

As stated, defendant-appellant contends the trial court erred in overruling defendant's motion for a...