Rowe v. M.-K.-T. Railroad Co.

• Decision Date: 14 December 1936
• Docket Number: No. 33012.,33012.
• Citation: 100 S.W.2d 480
• Parties: JAMES L. ROWE v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

100 S.W.2d 480

JAMES L. ROWE v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.

No. 33012.

Supreme Court of Missouri.

Division One, December 14, 1936.

Appeal from Cooper Circuit Court. — Hon. W.S. Stillwell, Judge.

AFFIRMED.

Carl S. Hoffman and Pendleton & Martin for appellant.

(1) The court erred in refusing to give instructions 1 and 6, offered by defendant and in the form of instructed verdicts. (a) The evidence wholly failing to support the allegations of negligence pleaded, there were no issues to submit to the jury. State ex rel. v. Ellison, 195 S.W. 724; Bennett v. Natl. Union Fire Ins. Co., 80 S.W. (2d) 919; Gunn v. Hemphill Lbr. Co., 218 S.W. 982. (b) Plaintiff assumed the risk of being injured. Under the Federal Employers' Liability Act the common-law doctrine of assumption of risk exists as a complete defense. Southern Ry. Co. v. Crockett, 234 U.S. 725; Boldt v. Ry. Co., 245 U.S. 441; So. Pac. Railroad Co. v. Berkshire, 254 U.S. 415; Delaware L. & W. Railroad Co. v. Koske, 279 U.S. 7; Pryor v. Williams, 254 U.S. 43. Under the pleadings and evidence plaintiff's injury resulted from a risk assumed by him. 39 C.J., pp. 684, 704; T. & N.O. Railroad Co. v. Hawthorne, 297 S.W. 321. (2) Instructions 7, 8 and 9, offered by defendant, should have been given for the reason that the charges of negligence sought to be withdrawn were not supported by the evidence. State ex rel. v. Ellison, 195 S.W. 724; Bennett v. Natl. Union Fire Ins. Co., 80 S.W. (2d) 919; Gunn v. Hemphill Lbr. Co., 218 S.W. 982. (3) The court erred in giving Instruction A offered by plaintiff. (a) The instruction is involved, confusing, misleading, too long and is so written that no jury could understand it. Williams v. Ransom, 234 Mo. 166; 64 C.J. 630; Weddle v. Tarkio El. & Water Co., 230 S.W. 390; Gillette v. Laederich, 242 S.W. 114. (b) Issues of negligence not supported by evidence should not be submitted to jury. State ex rel. v. Ellison, 195 S.W. 724; Bennett v. Natl. Union Fire Ins. Co., 80 S.W. (2d) 919; Gunn v. Hemphill Lbr. Co., 218 S.W. 982. (c) Issues of negligence not pleaded should not be submitted to jury. State ex rel. v. Ellison, 195 S.W. 724; Bennett v. Natl. Union Fire Ins. Co., 80 S.W. (2d) 919; Gunn v. Hemphill Lbr. Co., 218 S.W. 982. (d) Instructions should not contain conflicting theories. 64 C.J., pp. 671-682.

Wendell W. McCanles and Ronald Shankland for respondent.

(1) The court did not err in refusing to give instructions 1 and 6 offered by defendant and in the form of instructed verdicts. (a) There was substantial evidence to support the allegations of negligence pleaded. Dixon v. Frazier-Davis Co., 318 Mo. 50; Porterfield v. Term. Railroad Assn., 5 S.W. (2d) 447; Mud v. Foundry Co., 14 S.W. (2d) 652; Woodward v. Railroad Co., 295 S.W. 99; Wessel v. Lavender, 171 S.W. 331; Mehan v. St. Louis, 217 Mo. 35, 116 S.W. 514; Bradley v. Becker, 246 S.W. 561. (b) Plaintiff did not assume the risk of being injured. Clift v. Railroad Co., 9 S.W. (2d) 972; Van Loon v. Ry. Co., 6 S.W. (2d) 587; Rocco v. Railroad Co., 288 U.S. 274, 77 L. Ed. 743; Shaw v. Railroad Co., 282 S.W. 416; Westover v. Ry. Co., 6 S.W. (2d) 843; Armstrong v. Ry. Co., 55 S.W. (2d) 460. (2) Instructions 7, 8 and 9 offered by defendant should not have been given because the charges of negligence sought to be withdrawn were fully supported by the evidence. Relford v. K.C. Pub. Serv. Co., 50 S.W. (2d) 173; Solomon v. Moberly L. & P. Co., 303 Mo. 622, 262 S.W. 370; State ex rel. v. Trimble, 315 Mo. 166, 285 S.W. 729; Rock v. Keller, 312 Mo. 458; Ford v. Wabash, 300 S.W. 774; Teveau v. Ridge, 261 Mo. 547; Mossig v. Judge & Dolph Drug Co., 18 S.W. (2d) 418. (3) The court did not err in giving Instruction A offered by plaintiff. Wolf v. Payne, 241 S.W. 915; Crow v. Am. Linseed Oil Co., 255 Mo. 305; Andrews v. Lunbaugh, 260 Mo. 651, 169 S.W. 135; Weller v. Railroad Co., 164 Mo. 180; Walter v. Mo. Portland Cement Co., 250 S.W. 587; Johnson v. Am. Car & Foundry Co., 259 S.W. 442; Choka v. St. Joseph Ry. Co., 260 S.W. 67; Morrow v. Mo. Gas & Electric Serv. Co., 315 Mo. 367, 286 S.W. 106; Haley v. Fed. Truck Co., 274 S.W. 707.

FERGUSON, C.

Plaintiff was employed by defendant railroad company as a brakeman. While acting in that capacity as front or head brakeman on one of defendant's freight trains enroute from Kansas City, Missouri, to Parsons, Kansas, and points in Kansas, Oklahoma and Texas, he sustained an injury to his right eye which resulted in the loss and removal of that eye and a "sympathetic" impairment in the vision of the left eye whereby the vision in that eye was reduced to one-fifth of normal with a permanent, progressive condition existing indicative of an ultimate complete loss of vision. Plaintiff brought this action, for damages for the injury, under the Federal Employers' Liability Act. The action was instituted and tried in the Circuit Court of Cooper County and resulted in a jury verdict, and a judgment thereon, awarding plaintiff damages in the sum of $12,000 and defendant appealed. It is admitted, "that plaintiff was engaged in interstate commerce at the time of the alleged accident" and therefore that the Federal Employers' Liability Act applies.

An understanding of the assignments appellant makes necessitates first a statement of certain facts in evidence. The locomotive in use on this train was an "oil burner." The evidence is, that at frequent intervals the "flues" of an "oil burning engine" "become stopped" or clogged "with soot and refuse from the firebox" which causes the engine to "lag" and "not steam" properly and that to remedy such condition the fireman must periodically "sand the engine to clean out the flues." In "sanding an engine ... the best results are obtained when the engine is working at capacity" and defendant's road foreman of engines stated: "You should sand with an open throttle, it requires force to pull that sand through the flues." The evidence further shows that the "sanding" is usually and "customarily" done "while pulling up hill." An expert witness for plaintiff said in this connection: "At times soot accumulates on the flues of the locomotive and retards the heat and they admit sand at high velocity to clean out these flues and the harder the engine is working ... the more apt the engine is to clear itself" and "it is customary to sand an engine on the road at the hardest working points." The sanding operation is described by plaintiff in this way; that "there is a flap on the firebox door, 3 or 4 inches in diameter and the fireman pours the sand in (the firebox) with a sand horn and the draft carries the sand through the flues and out the smokestack and cleans the flues of any soot and refuse;" that "from 3 to 7 or 8 horns of sand are put in at one time" and "it takes from 3 to 5 minutes" to put the sand into the firebox; that black smoke and black sand is emitted or comes out of the smokestack and goes back over the train; and that "after the last horn of sand has been put into the engine it takes from 30 seconds to a minute for the smoke to clear up." Defendant's witness, the fireman on the train at the time the plaintiff alleges he sustained the injury, describes the sanding of an engine in this way: "We wait until ... the exhaust is close enough together so it will make a continuous draft through the firebox. We have a little hole in the fire door and take sand out of the sandbox with a funnel shaped horn which we dip full of sand and hold up to the hole and let the sand run down slowly through the firebox; the sand passes through and takes out soot and anything that is in the flues. The engineer usually watches the stack to see when the black smoke quits coming out and when it quits he tells the fireman or gives him a sign and the fireman stops" and "when the soot is all out, the smoke clears up." All the evidence is to the effect that while the sanding operation is in progress a mass or large quantity of black sand, soot and smoke is emitted from the smokestack and passes back over the train. Plaintiff's evidence is to the effect that practically all the sand put into the firebox passes out or is ejected from the smokestack at the time or while the sanding operation is in progress, though it is conceded that particles of sand will "lodge" here and there and will at times, as they may be dislodged and get into the line of draft, be thrown out through the smokestack. The fireman further stated: that "we usually sand going uphill;" that "we do not sand in the towns" nor "in city limits," "we wouldn't throw sand in peoples eyes if we knew it;" and that "we wouldn't sand where there are any houses or anything along the track, we wouldn't do that."

Having attempted to describe, in the language of the witnesses, what is meant by sanding an engine, we shall now relate the evidence as to how the injury occurred, which the trial court, upon defendant's motion for a directed verdict offered at the conclusion of all the evidence, held sufficient to make an issue for the jury while defendant claims that no actionable negligence was shown and that it conclusively appears that the injury claimed resulted from one of the ordinary risks of plaintiff's employment. This freight train left Kansas City, Missouri, on a regular trip, September 2, 1931, with plaintiff working as head or front brakeman. His run was from Kansas City, Missouri, to Parsons, Kansas, where he resided. He was at that time thirty-nine years of age and had been employed as a brakeman on defendant's lines for fifteen years. As front brakeman he rode "on the rear of the tank" where he sat with his back toward the engine, facing toward the train, in a position from whence he could "watch his train for hot boxes around curves and everything in general;" that "is the customary position" for the "head brakeman while the train is moving." It was the duty of the head brakeman and engine crew to look for the position of the...