Schleappe v. Terminal R. R. Ass'n of St. Louis

• Citation: 98 S.W.2d 616,339 Mo. 562
• Parties: Adolf Schleappe v. Terminal Railroad Association of St. Louis, Appellant
• Decision Date: 12 November 1936
• Court: United States State Supreme Court of Missouri

98 S.W.2d 616

339 Mo. 562

Adolf Schleappe v. Terminal Railroad Association of St. Louis, Appellant

Supreme Court of Missouri

November 12, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge;

Affirmed (upon condition).

T M. Pierce, J. L. Howell and Walter N. Davis for appellant.

(1) The record contains no evidence that defendant, or its agents or servants, before the accident, placed the brake shoe in the pathway, or that defendant, or its agents or servants, knew it was there, or that it had been there for a sufficient length of time before the accident to charge defendant with notice and knowledge. Haggard v. McGrew Coal Co., 200 S.W. 1072; Manche v. St. Louis B. & B. Co., 262 S.W. 1021; Bello v. Stuever, 44 S.W.2d 619; Blankenship v. St. L. Pub. Serv. Co., 71 S.W.2d 723; M. K. & T. Ry. Co. v. Jones, 103 Tex. 187, 125 S.W 309; Hawthorne v. Railroad Co., 84 S.W.2d 1015. (a) Plaintiff of his free will and accord, alighted from the steps of a car thirty-one inches above the ground, with his hands full of tools, and without gripping the handholds, when he knew a train was moving on the next adjacent track four or five feet distant and when he could have remained on the platform a few seconds until the train on track 6 had moved away; or plaintiff could have taken the pathway between the tracks around the cars to his place of work. Plaintiff assumed and placed himself in a position of extreme danger, which was neither furnished for the performance of his work nor well adapted thereto, resulting that his negligence was the sole and direct cause of his injuries, and knowing the above conditions, he assumed the risk. Atlantic C. L. Railroad Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210, 73 L.Ed. 601; Holm v. Cities Serv. Trans. Co., 60 F.2d 721; Macchia v. Railroad Co., 156 A. 337; Papandrianos v. Railroad Co., 138 N.E. 547. (2) Employees, engaged in preparing or repairing an engine or car for a trip within the State to be presently used for carrying interstate packages or engaged in interstate transportation or work so closely related to it as to be practically a part of it. Cox v. Ry. Co., 76 S.W.2d 411; Central Railroad Co. of N. J. v. Sharkey, 259 F. 144; 2 Roberts, etc., p. 1468, sec. 764; Hines v. Logan, 269 F. 105; King v. Railroad Co., 176 N.C. 301, 97 S.E. 29, certiorari denied 249 U.S. 599, 39 S.Ct. 257, 63 L.Ed. 795; Libertucci v. Railroad Co., 252 N.Y. 182, 169 N.E. 132, affirming order 234 N.Y.S. 832, 226 A.D. 829; Moran v. Railroad Co., 109 Conn. 94, 145 A. 567; North Car Railroad Co. v. Zachery, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591. (a) If the undisputed evidence, even though it is that of defendant, shows that both plaintiff and defendant were engaged in interstate transportation, at the time of plaintiff's injuries, the court must so find. B. & O. S.W. Railroad Co. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433; Cox v. Ry. Co., 76 S.W.2d 414. (3) Plaintiff's counsel argued to the jury and asked them to put their condemnation upon the way this case has been defended by the defendant, and further saying, "I want to say that Mr. Davis can smile" -- Defendant asked that he be reprimanded and that the jury be discharged, which the trial court refused to do. In this the court erred. Smith v. St. Louis Pub. Serv. Co., 84 S.W.2d 161; New York C. Railroad Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706. (4) The verdict is and was excessive. Moore v. Railroad Co., 268 Mo. 31, 186 S.W. 1035; Waldhier v. Railroad Co., 87 Mo. 37; Markey v. Railroad Co., 185 Mo. 348, 84 S.W. 61; Turnbow v. Rys. Co., 277 Mo. 644, 211 S.W. 41; Babin v. Sewerage & Water Board, 2 La. App. 517.

Charles P. Noell for respondent; Wm. H. Allen of counsel.

(1) Since the railway yards in question were under the complete dominion and control of defendant, and defendant was furnishing terminal facilities to the receivers of the Wabash Railway Company and making repairs, such as the changing of brake shoes, upon the passenger cars of said receivers while they were in said yards, under contract with said receivers and it was necessary for plaintiff, in the performance of his duties as an electrician in the employ of said receivers, to go on defendant's said premises and work thereupon, as a necessary incident to the carrying out of the contract between defendant and said receivers, as defendant well knew, defendant owed to plaintiff the same duty respecting the safety of said premises that it owed to its own employees working thereon, namely, the duty to exercise ordinary care -- such care as was commensurate with the dangers reasonably to be anticipated and avoided -- to constantly maintain such premises in reasonably safe condition for the performance of the said duties that plaintiff was so required to there perform. Burch v. Ry. Co., 328 Mo. 59; Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009; Clark v. Ry. Co., 234 Mo. 420; Clark v. Union Iron & Foundry Co., 234 Mo. 454; Ford v. Dickinson, 280 Mo. 206. Hutchinson v. Safety Gate Co., 247 Mo. 99; Ryan v. St. L. Transit Co., 190 Mo. 633; Jewell v. K. C. Bolt & Nut Co., 245 Mo. 737; Kiehling v. Humes-Deal Co., 16 S.W.2d 641; Jetter v. St. J. Term. Ry. Co., 193 S.W. 956; Dunn v. Ry. Co., 192 Mo.App. 270; Ridenour v. Harvester Co., 205 S.W. 883; Tinkle v. Railroad Co., 212 Mo. 445; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982; Crawford v. Stock Yards Co., 215 Mo. 394; Von Treba v. Gas Light Co., 209 Mo. 648; Chandler v. Railroad Co., 251 Mo. 992; Young v. Waters-Pierce Oil Co., 185 Mo. 634; 45 C. J., pp. 819, 820, sec. 227. (a) Whenever a servant is engaged in work upon premises owned by and under the control of another, under a working arrangement between the latter and the servant's master, and the servant is injured by reason of an unsafe condition negligently suffered to exist upon said premises, such owner in control of said premises is liable to the servant to the same extent as though the latter were his own employee. Burch v. Ry. Co., 328 Mo. 59; Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009; Clark v. Ry. Co., 234 Mo. 420; Clark v. Union Iron & Foundry Co., 234 Mo. 454; Ford v. Dickinson, 280 Mo. 206; Hutchinson v. Safety Gate Co., 247 Mo. 99; Ryan v. St. L. Transit Co., 190 Mo. 633; Jewell v. K. C. Bolt & Nut Co., 245 Mo. 737; Kiehling v. Humes-Deal Co., 16 S.W.2d 641. (b) It is the nondelegable duty of a master -- or of one who is required to exercise the same degree of care for the protection of the servants of others upon his premises as though they were his own servants -- to exercise ordinary care to furnish the servant a reasonably safe place to work and to keep such working place safe. Such duty is an affirmative, continuing one, which must be constantly fulfilled and positively performed, and involves the continuing duty to exercise such supervision over said premises and to make such inspection thereof as will be effectual to protect the servant against dangers that may arise in such working place. What will constitute ordinary care in this regard is dependent upon the character of the working place, and is commensurate with the dangers reasonably to be anticipated and avoided. Hayes v. Sheffield Ice Co., 282 Mo. 446; Kemper v. Gluck, 327 Mo. 746; Burch v. Ry. Co., 328 Mo. 59; Vordermark v. Hill-Behan Lbr. Co., 12 S.W.2d 502; Doyle v. Ry. Co., 326 Mo. 425; Laughlin v. Ry. Co., 275 Mo. 466; Hicks v. Railroad Co., 226 Mo.App. 364; Jablonowski v. Modern Cap Co., 312 Mo. 173; Lock v. Railroad Co., 281 Mo. 540; Bodenmueller v. Columbia Box Co., 237 Mo. 881; White v. Montgomery-Ward & Co., 191 Mo.App. 271; Van Verth v. Loose-Wiles Co., 155 Mo.App. 299; Johnson v. Bolt & Nut. Co., 172 Mo.App. 214; Smith v. So. Ill. & Mo. Bridge Co., 326 Mo. 116; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 991; Bone v. Fruin-Colnon Contr. Co., 191 S.W. 1062; Brown v. Ry. Co., 227 S.W. 1069; Tash v. Ry. Co., 76 S.W.2d 697. (c) Not only was this brake shoe, over which plaintiff stumbled and fell, lying in the pathway between tracks 6 and 7, immediately in front of the car steps that plaintiff descended, but under all the evidence, including that warranting the inference that the brake shoe had lain at that place long enough to make a distinct imprint in the hard cinder pathway between the tracks, the jury was warranted in inferring that the brake shoe had been in that very position for ample time to have enabled the defendant, by the exercise of due care on its part, to have discovered its presence and removed it. In view of the dangers to workmen to be apprehended from the presence of obstructions of this character at such a place, the law required the defendant to exercise the utmost vigilance to keep the place free therefrom, and the utmost promptness in removing any that might be left there. Vordermark v. Hill-Behan Lbr. Co., 12 S.W.2d 503; Laughlin v. Ry. Co., 275 Mo. 466; Van Verth v. Cracker & Candy Co., 155 Mo.App. 299; Reese v. Biscuit Co., 224 S.W. 63; Burch v. Ry. Co., 328 Mo. 59; Jablonowski v. Modern Cap Co., 312 Mo. 173; Bone v. Fruin-Colnon Contr. Co., 191 S.W. 1062; Johnson v. Bolt & Nut Co., 172 Mo.App. 218; Tash v. Ry. Co., 76 S.W.2d 697. (2) Nor was there any error committed in connection with the testimony of plaintiff's witness Hammerschmidt in regard to what he saw the colored cleaner, Harvey, do with the brake shoe. Hammerschmidt was not permitted to state anything that Harvey said, as to where the latter found the shoe or otherwise. There could have been no error in merely permitting Hammerschmidt to testify that he observed Harvey place the brake shoe on the ground a short distance in front of the step of car 591, and it is certain that defendant cannot complain thereof, for defendant invited it, by previously bringing out from the witness Hummell on...