Schlueter v. East St. Louis Connecting Railway Co.

• Decision Date: 11 April 1927
• Docket Number: 25458
• Parties: Herman Schlueter v. East St. Louis Connecting Railway Company, Appellant
• Court: Missouri Supreme Court

296 S.W. 105

316 Mo. 1266

Herman Schlueter v. East St. Louis Connecting Railway Company, Appellant

No. 25458

Supreme Court of Missouri

April 11, 1927

Motion for Rehearing Overruled May 24, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Affirmed.

J. L Howell and S. P. McChesney for appellant.

(1) The court erred in refusing to give the instruction offered by the defendant at the close of plaintiff's case. (a) Because it is incumbent upon the plaintiff, under the Employers' Liability Act, to prove negligence before his case can be submitted to the jury. Seaboard Air Line Ry v. Horton, 233 U.S. 492. (b) Because the evidence shows that the work was being done in the usual and customary way when the running tracks were blocked, and whatever injuries plaintiff received were due to the usual and ordinary risks incident to his employment. Seaboard Air Line Ry. v. Horton, 233 U.S. 504; Reed v. Director General of Railroads, 110 A. 254 (Penn.) . (c) Because the evidence shows that the condition of the track was obvious to plaintiff and he appreciated it; such risk is assumed by him, even though created by the master's negligence. Seaboard Air Line Ry. v. Horton, 233 U.S. 504; Jabobs v. Southern Ry. Co., 241 U.S. 229; Boldt v. Penn. Railroad, 245 U.S. 411; Prior v. Williams, 254 U.S. 43; Quigley v. Hines, 291 Mo. 23; Hines v. Wicks, 220 S.W. 581. (2) The court erred in giving Instruction 1 for plaintiff covering the whole case. (a) Because said instruction was broader than the facts proven. Degonia v. Railroad, 224 Mo. 589; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 654. (b) Because said instruction conflicts with defendant's Instruction 3 and is irreconcilable and contradictory of defendant's said instruction. Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645. (3) The court erred in refusing necessary and proper instructions offered by defendant, being Instructions D, E and G, because plaintiff failed in his proof that an engine of the type could not be safely run over track 1, while, on the other hand, the proof adduced was that while track 1 was a yard track and a slow track, it was safe to run an engine over it at a speed of six or eight miles an hour. Chicago, S. P. M. & O. Ry. Co. v. Kroloff, 217 F. 528; Rosemann v. Railroad, 197 Mo.App. 342. Because the judgment of $ 12,500 is still excessive. Kibble v. Railroad, 285 Mo. 603.

Charles P. Noell and Glen H. Mohler for respondent.

(1) The court properly refused the instruction offered by defendant in the nature of a demurrer to the evidence at the close of plaintiff's case and at the close of the whole case. (a) This court has prescribed the test to be applied in determining whether there was substantial evidence supporting the verdict. Burtch v. Wabash Ry. Co., 236 S.W. 338; Buesching v. Gaslight Co., 73 Mo. 231; State ex rel. v. Sturgis, 276 Mo. 571; Sexton v. Sexton, 295 Mo. 143. (b) It is negligence under the Federal Employers' Liability Act for a railroad company to order a member of a train crew over a track which is not reasonably safe because of defects and insufficiencies of which it knew or could have known by the exercise of ordinary care. Miller v. Schaff, 228 S.W. 488; St. L. & S.W. Ry. Co. v. Duke, 192 F. 306; Vicksburg & Meridian Railroad Co. v. Putnam, 118 U.S. 596, 30 L.Ed. 257. (c) The duty of a master to use ordinary care to furnish a reasonably safe place for the servant to work and reasonably safe appliances extends to places and appliances owned by and under the exclusive control of another company, and it is not thereby relieved of the duty of inspection, nor any other non-delegable duties. Ford v. Ry. Co., 280 Mo. 225; Clark v. Iron & Foundry Co., 234 Mo. 436; Gutridge v. Mo. Pac. Ry. Co., 90 Mo. 474. (d) A railroad company using the tracks of another company is liable to an employee on its engine or cars for injuries sustained by reason of defects in the roadbed, tracks, etc., of such other company. Boston & Maine Railroad v. Brown, 218 F. 625; Floody v. Ry. Co., 109 Minn. 228, 123 N.W. 815; Ford v. Ry. Co., 280 Mo. 225; Kanawha Ry. Co. v. Kerse, 239 U.S. 576; Story v. Railroad Co., 70 N.H. 364, 48 A. 288; Doyle v. Ry. Co., 127 Mich. 94, 86 N.W. 524; Wisconsin Central Railroad Co. v. Ross, 142 Ill. 9, 31 N.E. 412; Steller v. Ry. Co., 46 Wis. 497, 1 N.W. 112; Mendow v. Railroad Co., 82 Conn. 373; Devine v. Delano, 272 Ill. 166; Rapid Transit Co. v. Edwards, 55 Tex. Civ. App. 543, 118 S.W. 838; New York C. & St. L. Railroad Co. v. Hamlin, 170 Ind. 20, 83 N.E. 343; Lindsay v. Plaster Co., 190 N.W. 275. (e) Constructive notice to defendant of the defects and insufficiencies in the track and roadbed may be inferred from long continuance; proof of actual knowledge is not essential. Miller v. Schaff, 228 S.W. 491; Devine v. Delano, 272 Ill. 166; Kanawha Ry. Co. v. Kerse, 239 U.S. 576; Floody v. Ry. Co., 109 Minn. 228; Story v. Railroad Co., 70 N.H. 364. (f) Under the undisputed evidence that plaintiff had never passed over this track before and in the absence of evidence that the defects were known to plaintiff or plainly observable, it cannot be said that the evidence conclusively proved assumption of risk. Miller v. Schaff, 228 S.W. 491; Choctaw O. & G. R. Co. v. McDade, 191 U.S. 68, 48 L.Ed. 96; T. & P. Ry. Co. v. Archibold, 170 U.S. 671, 42 L.Ed. 1188; U. P. Ry. v. O'Brien, 161 U.S. 457, 40 L.Ed. 766; Kanawha Ry. Co. v. Kerse, 239 U.S. 576. (2) The main instruction given for plaintiff is a correct statement of law, and correctly submitted the issues to the jury. (a) It is warranted by the pleadings and proof. (b) If it placed a greater burden on plaintiff than was necessary, by requiring the jury to negative contributory negligence, defendant cannot complain. Berry v. Railroad, 214 Mo. 604; Schmitt v. Transit Co., 115 Mo.App. 453; Penney v. Kramer, 182 S.W. 756. (c) There is no conflict between Instruction 1 and defendant's Instruction 3. (3) The refusal of defendant's withdrawal Instructions D, E and G did not harm defendant, as plaintiff abandoned the issues sought thereby to be withdrawn. Flach v. Ball, 240 S.W. 469; Dietzman v. Screw Co., 254 S.W. 65; Berry v. Coal Co., 253 S.W. 460; Johnson v. Wabash Railroad Co., 259 Mo. 534. The judgment of $ 12,500 is not excessive. Zumwalt v. Ry., 266 S.W. 717; Mattice v. Ry., 270 S.W. 306.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This cause has recently been reassigned to the writer to express the opinion of this court. The action is one to recover damages for personal injuries, alleged to have been suffered by respondent because of appellant's negligence. Respondent was in the employ of appellant as a switchman, and was injured by the derailment of an engine tender, upon the footboard of which he was riding in the performance of his duties in the switch-yard of the Missouri Pacific Railroad Company at Dupo, Illinois, about 4:40 o'clock on the afternoon of January 6, 1922. It is conceded by the respective parties herein that the switching movement in which respondent was injured was one in interstate commerce, and hence the action falls within the Federal Employers' Liability Act.

The petition charges appellant with negligence in the following respects:

"(1) Plaintiff further states that the track and roadbed were defective and insufficient in that it was old and out of repair and was uneven and rough, and the rails were of different sizes and weights and were old and worn and were not securely joined, and the ties were old and rotten and not lying upon a firm and even surface and roadbed, and the spikes were loose and the rail joints were loose and uneven and by reason of such defects, singly and collectively, the plaintiff was injured as aforesaid, and such condition of the track was known or by the exercise of ordinary care could and should have been known to the defendants and their officers and agents in time, by the exercise of ordinary care, to have prevented plaintiff's injuries, yet they neglected so to do and sent plaintiff over such defective track and thereby caused his injuries.

"(2). Plaintiff further states that the agents and employees of the defendant in charge of the movements of the engine involved knew or by the exercise of ordinary care could have known and should have known that the track was not in a condition in which an engine and tender of the style and type being used could be used with reasonable safety upon it, yet carelessly and negligently, in order to save a little time, sent the engine and tender over the track and caused the plaintiff to be injured as herein stated.

"(3). Plaintiff further states that the track involved was one used merely for the storage of cars and was not designed or intended for the use of large engines to pass over, and was not constructed and kept in condition so that it was reasonably safe for large engines of the kind being used at the time herein mentioned, and that the defendants, and their agents in charge, knew or by the exercise of ordinary care could and should have known that it was so constructed and kept, and that it was not reasonably safe for the passage of such engine and tender, yet they negligently used such track and thereby caused the plaintiff to be injured as herein stated.

"(4). Plaintiff further states that the agents and employees in charge of the speed and movements of the engine ran the engine at a rate of speed that was dangerous and not reasonably safe, considering the size of the engine and the condition of the track, when such agents and employees knew or by the exercise of ordinary care could and should have known of such and the condition of the track before running the engine over it at such speed, yet did so...