Schillie v. Atchison, Topeka & Santa Fe Railway Co.

• Decision Date: 17 June 1955
• Docket Number: No. 15135.,15135.
• Citation: Schillie v. Atchison, Topeka & Santa Fe Railway Co., 222 F.2d 810 (8th Cir. 1955)
• Parties: Marvel SCHILLIE, Administratrix of the Estate of Marion Schillie, Deceased, Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

222 F.2d 810 (1955)

Marvel SCHILLIE, Administratrix of the Estate of Marion Schillie, Deceased, Appellant, v.ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellee.

No. 15135.

United States Court of Appeals Eighth Circuit.

April 20, 1955.

Rehearing Denied June 17, 1955.

Ernest Hubbell, Kansas City, Mo. (Frank X. Mattes, Kansas City, Mo., was with him on the brief), for appellant.

Richmond C. Coburn, St. Louis, Mo. (John H. Lathrop, Sam D. Parker, Kansas City, Mo., and Frank E. Booker, St. Louis, Mo., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and COLLET and VAN OOSTERHOUT, Circuit Judges.

COLLET, Circuit Judge.

Plaintiff, as Administratrix of the Estate of Marion Schillie, brought this action to recover damages for the death of Marion Schillie, her husband, who was killed while working for the defendantRailway Company in the repair of defendant's railroad bridge at Topeka, Kansas.Negligence was charged under the Federal Employers' Liability Act, 45 U. S.C.A. § 51 et seq. A jury returned a verdict for the defendant.From the judgment entered pursuant to that verdict this appeal was taken.

Deceased was a member of a steel bridge repair gang.At the time of his death he was engaged in doing riveting work on the bridge at Topeka.That work required the use of a scaffold.The scaffold was suspended from the top longitudinal steel beams of the bridge by ropes.To construct the scaffold ropes were attached to each end of two wooden beams somewhat longer than the width of the bridge.The ropes were then placed over the top longitudinal steel beams of the bridge and the ends of the wooden beams drawn up to the proper height, the wooden beams extending across the bridge at right angles to the rails.Wooden planks were then placed upon these wooden beams, thus forming a platform upon which riveters worked in installing rivets in the upper steel structural members of the bridge.

It was necessary that the scaffold platform be level.To accomplish that it was necessary that one of the workmen climb up a steel member of the bridge to a sufficient height to bring his eye to the height the floor of the scaffold was to be and, by sighting, direct the adjustment of the suspension ropes upward or downward until the wooden beams which were to support the floor boards of the scaffold were each at the same height from the top of the bridge and transversally level.Deceased was doing that at the time of his death, which occurred in the following manner.

The scaffold now involved was to be suspended at one end of the bridge.Sloping steel members two feet in width rose from the longitudinal steel floor members of the bridge to the top of the superstructure of the bridge on each side at an angle of 53 degrees, connecting at the top with a perpendicular steel member and the longitudinal top member of the superstructure.These two sloping steel beams were called batter posts.On each side of each of these batter posts was a flange extending out three or four inches from the sides of the boxlike steel batter post.A number of rivet heads extended above the otherwise smooth upper surface of the batter posts.As was customary for workmen engaged in this work to do, deceased climbed up one of the sloping batter posts, using the rivet heads as footholds and holding to the flanges on each side by his hands.When he reached the proper height to do the sighting, he leaned to the inside of the batter post to direct the leveling of the wooden beams and fell to the floor of the bridge, receiving injuries resulting in his death.

Plaintiff charged negligence in that defendant negligently (1) failed to equip the batter post with adequate handholds, footholds or steps, or to provide a reasonably safe scaffold from which to work; (2) failed to furnish adequate safety devices to prevent deceased from falling from the batter post, or to catch him in the event he did fall from the post;(3) required deceased to climb the batter post when defendant knew or should have known that in so doing his life would be unnecessarily endangered.

The assignments of error are (1) that the trial court erroneously excluded evidence showing that safety devices consisting of grab-iron steps were placed on the upper sides of the batter posts on one of its steel bridges located at Sibley, Missouri; (2) that evidence to the effect that the batter post without grab-iron steps was not reasonably safe, and that such steps thereon would have made it reasonably safe, was erroneously excluded; (3, 4) that evidence to the effect that a portable adjustable platform on wheels, or a hydraulic hoist platform, or a "hi-way" railway motor car, could have been furnished and would have made the working conditions reasonably safe, and that the use of such devices was practical, was erroneously excluded; (5) that the trial court erroneously admitted evidence that defendant's witnesses, members of the steel bridge crew, had never heard of or known of a man falling from a batter post until deceased fell and that one of those witnesses had never fallen from a batter post;(6) that error was committed in failing to give an instruction requested by plaintiff defining negligence; and (7) that the court erred in not sustaining plaintiff's objection to defendant's argument to the jury to the effect that deceased assumed the risk of falling, and erred in failing to give plaintiff's requested instruction negating the doctrine of assumption of risk.

In determining the propriety of the exclusion of evidence, Rule 43(a) of the Federal Rules of Civil Procedure,28 U.S. C.A. § 43(a), will be applied.Thereunder

"* * * All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held.In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made.The competency of a witness to testify shall be determined in like manner."

The issues of fact which the parties were presenting to the jury for determination are of importance in considering the admissibility of the evidence that defendant's Sibley bridge was equipped with grab-iron steps on the batter posts.Plaintiff was making the assertion, among others, that the failure to put grab-iron steps on the batter posts constituted negligence.Defendant contended it was not negligent and relied upon proof that it was customary not to so equip batter posts to absolve itself from the charge of negligence.To emphasize its position, defendant offered evidence that on no batter posts such as this one had the steps ever been attached.It had attached the steps on the Sibley bridge.Plaintiff endeavored to show that defendant had so equipped its Sibley bridge.The court excluded the evidence upon the grounds that the batter posts on the bridges were dissimilar and that the existence of the grab-iron steps on the Sibley bridge was only evidence of an isolated instance and did not tend to show a custom contrary to defendant's custom.The batter posts on the Sibley bridge were four feet wide instead of two, as on the Topeka bridge.Plaintiff offered evidence that the difference in width did not alter the necessity to have the steps in order to render the batter posts reasonably safe.But this evidence was excluded.Defendant had witnesses who testified that no one had ever been known to fall from a batter post such as those on the Topeka bridge until deceased fell.

Defendant supports the rejection of this evidence on the ground that the receipt or rejection of such evidence is largely discretionary and an abuse of discretion does not appear.The cases cited in support of this argument, notably Lake Superior Loader Co. v. Huttig Lead & Zinc Co., 305 Mo. 130, 264 S.W. 396, andCounts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, are to the effect that a broad degree of discretion will be allowed the trial court in determining whether sufficient similarity has been shown between the instrumentalities or conditions to justify the receipt of this type of evidence.Those cases do not answer our present question, because the court excluded the evidence offered to show the substantial similarity, for the purposes involved, of the batter posts on the two bridges.

On the question of whether this evidence was properly excluded because it tended only to show an isolated instance and not a custom, defendant cites Smith v. Fordyce, 190 Mo. 1, 88 S.W. 679, andJones v. Kansas City, Ft. S. & M. R. Co., 178 Mo. 528, 77 S.W. 890.Those cases do little more than lay down the general rule that the law does not impose the duty upon an employer to furnish absolutely safe or even the best known appliances but that if he does all that a reasonably prudent master, mindful of the dangerous character of his business, would ordinarily do to protect the lives of his servants, it is sufficient to relieve him of the charge of negligence.Smith v. Fordyce, 190 Mo. 1, 88 S.W. 679, 687.In those and other similar casesthe plaintiff proved a custom and practice contrary to the alleged negligent custom or practice of the defendant, upon which evidence the courts held that a jury question was made.The inference sought to be drawn is that only when the plaintiff's evidence amounts to a showing of a custom contrary to the practice followed by the defendant is such evidence admissible.We do not find that to be the proper inference to be drawn from the Missouri authorities.An exhaustive discussion of the Missouri case law on what constitutes a submissible case is found in Knott v. Missouri Boiler & Sheet Iron...