Sampson v. Missouri Pac. R. Co.

Decision Date03 January 1978
Docket NumberNo. 59908,59908
Citation560 S.W.2d 573
PartiesRobert L. SAMPSON, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellant.
CourtMissouri Supreme Court

Robert D. Youle, Kansas City, for defendant-appellant.

F. Russell Millin, Kansas City, for plaintiff-respondent.

SEILER, Judge.

Respondent (hereinafter referred to as plaintiff) was injured when he fell some fourteen feet to the ground from the top deck of a tri-level auto carrier railroad car. He recovered judgment, entered upon a jury verdict, for $300,000 on the theory that appellant railroad (hereinafter referred to as defendant) was negligent in delivering a tri-level railroad car which did not have a foot railing along the outside edge of its top deck in the middle of the car for a space of about four feet and nine inches, which rendered it not reasonably safe for the performance of his loading duties as an employee of the consignee, and that he was not warned by defendant of the condition of the car.

The court of appeals, Kansas City district, on the railroad's appeal, reversed and remanded for a new trial on the basis of failure of proof that the railroad had notice of the manner which plaintiff used the foot rail and also for failure to use MAI 31.01 as the main instruction on liability. On plaintiff's application we ordered the case transferred here, it appearing that a question of general importance was involved with respect to the duty of a railroad to inspect and warn as to a claimed defective condition in an auto carrier railroad car delivered by the railroad to a consignee, where the condition complained of was part of the design of the auto carrier as manufactured by a third party, and also as to the correct instruction for such a case. 1 We affirm.

Plaintiff had worked for General Motors Corporation at its Leeds Chevrolet plant since April 1949. For four years prior to May 17, 1965, the date of his injury which gave rise to this action, he worked in the automobile loading shed where the railroad cars were loaded, as a hookup man, a ratchet man, a driver and yard attendant. His job was to inspect loaded automobiles. In the course of inspection plaintiff checked the rail car number to see if it matched his papers. He then went to the head of the rail car, got on it, and started at the first automobile, checked its tie downs front and back to see if they were tight; checked the inside to see that all lights were out, and the doors locked, taking the keys and accumulating them for deposit in a designated place in the last car. After climbing to the second level the inspection procedure was continued. There were five automobiles on each of the three levels of the rail car, and on each level, including the third level from which plaintiff fell, there was about 18 inches to 24 inches space between the edge of the rail car and the automobiles, depending upon whether they had been driven on straight. In this space plaintiff walked sideways facing the automobiles while inspecting.

The rail car in question was constructed with a low railing, about 6-7 inches high, consisting of sections of angle iron, mounted horizontally along the outside edge of the top deck, on short vertical iron supports. Judging from the photographs in evidence there are ten of these rail sections along each side of the top deck. There also is a stout hand cable strung along each side of the top deck about waist high, in the same vertical plane as the railing below it. Except where interrupted by the vertical stanchions which support the hand cable, the angle iron railing is continuous along each side of the deck except in the middle portion where, for a distance of about four feet nine inches, there is no rail. It was at this point that plaintiff fell off the edge of the top deck.

By a contract between defendant and General Motors Corporation defendant agreed to furnish and switch auto carrier railroad cars known as "trailer trains" into and out of GMC's Leeds plant. Defendant's agents performed the switching operations and inspected the rail cars in the loading shed for safety defects and to see that bridges were down and tie-down chains and ratchets were in place. Fifteen to twenty of these rail cars were being loaded by the General Motors workers at each shift. The rail car in question was inspected about 4:00 p. m. on May 17, inside the loading facility at the plant, as to tie-down chains, ratchets, walkways, safety cables, "etc.", and again about 7:30 p. m. after plaintiff's accident.

Plaintiff started to work at 4:30 p. m. He had inspected two cars on the third deck, and was on his third car. He looked under it to see if the chains were tightened down at its front, then walked to the back and checked the chains, then came back to lock the automobile. "I went to receive my keys out of the ignition and was closing the door when I stepped back and missed the foot railing and fell." Snapshots of the rail car taken shortly after the accident show that the automobile which plaintiff was inspecting was parked in the center section of the auto rack. It was a two-door coupe and the right hand door, the one plaintiff was closing, was directly opposite the area where there was no railing. He did not know before this time that the foot railing was missing, and had never worked on a car where the railing was missing in the center. He testified further as follows:

"Q. . . . What use do you put that foot rail to when you are working up there?

A. More of a safety catch, sir.

Q. Well, state whether or not the foot rail is used by you?

A. Yes, sir, it was more for safety to catch you in case you fell.

Q. State whether or not the foot rail enabled you to know where your feet were?

A. Yes, sir.

Q. . . . Now, after you stepped back and fell, do you remember . . . anything until you were in the hospital?

A. No, sir.

Q. . . . Did you receive any warning from anyone on May 17, 1965 that there was a missing guardrail on the third deck of this railroad car?

A. No, sir. I did not."

On cross-examination plaintiff testified that when he fell he remembered only grabbing for the hand cable and did not know whether he fell over or underneath the hand cable.

Fellow employees of plaintiff Sampson testified that the use of the rail was as a guide for the feet of employees who had to back out of each automobile upon completing their interior inspection; that in inspecting the automobiles the employee would be facing the vehicle, with his attention primarily on it. One testified that the foot rail was to everyone "the important thing, more important than . . . the (hand) railing with the rope through it, because they were more or less loose."

Defendant makes several contentions of error in the trial court disposition, which we summarize as follows: (1) failure to make a submissible case of negligence; (2) contributory negligence as a matter of law; (3) that MAI 31.01 was the required instruction for plaintiff and that the one used, instruction No. 3, failed to include essential elements and was not supported by the evidence; (4) that instruction No. 7, referring to payment of workmen's compensation benefits, injected a false issue, and (5) numerous errors as to exclusion and admission of evidence.


Without any doubt, a railroad which delivers a train car to one whose employees must load it is liable to the employees for negligence if the car is in an unsafe condition.

'It is also unquestionably negligence . . . for a railroad, when it delivers a car to a consignee whose employees are to load it or unload it, to fail to exercise ordinary care to see that it is in such condition that such employees, if exercising ordinary care themselves, can enter it with reasonable safety for the purpose of loading or unloading it", Markley v. Kansas City Southern Ry. Co., 338 Mo. 436, 90 S.W.2d 409, 411 (Mo.1936); see Gorman v. St. Louis-San Francisco R.R. Co., 427 S.W.2d 390, 394 (Mo.1968); 65 Am.Jur.2d Railroads § 415 (1972); Annot., 99 A.L.R.2d 176 (1965); and either to make repairs or warn of an unsafe condition. Ward v. Kurn, 165 S.W.2d 290, 293 (Mo.App.1942). Cases in which railroads have been liable for their delivery of a defective freight car usually involved conditions of the railroad car which a reasonable inspection by the carrier furnishing it would have disclosed, such as holes in the floor, defective brakes, defective car doors, and the like. Here defendant, by its answers to interrogatories, admitted that there was no foot railing for a space of four feet nine inches long in the center of the car in question. It is clear this was the original manufactured condition of the tri-level car; there was nothing mangled, bent or dislodged about it. Nevertheless, under the facts before us, for reasons discussed below, defendant's duty was to warn plaintiff and his fellow employees of the absence of the center section of rail for whatever reason it was missing.

Defendant argues that it is being held responsible for a matter of original design over which it had no control; that the railroad car was not subject to a "bad-order" upon defendant's inspection of it earlier in the day as it was exactly in the condition in which it was built and designed; that defendant had no authority to alter the structure of some other carrier's rail car; that there was nothing out of the way or dangerous for it to notice in any event; that what plaintiff is asking would require defendant to "second guess" the designer of the equipment.

Defendant says, further, that evidence which was offered but excluded would have shown the low railing was not intended as a safety device or foot guide, but to provide leverage for the hookup and ratchet men to push against as they moved and worked under the automobiles; that the rail was not intended to be used as plaintiff said he used it, that there was no proof of any...

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