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

• Decision Date: 09 September 1957
• Docket Number: No. 2,No. 45520,45520,2
• Citation: 305 S.W.2d 18,62 A.L.R.2d 1416
• Parties: Joseph SCHROECK (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Appellant
• Court: Missouri Supreme Court

Page 18

305 S.W.2d 18

62 A.L.R.2d 1416

Joseph SCHROECK (Plaintiff), Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation (Defendant), Appellant.

No. 45520.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1957.

Warner Fuller, John P. Montrey, St. Louis, for (defendant) appellant.

Gragg, Aubuchon & Rooney and William R. Schneider, St. Louis, for respondent.

BARRETT, Commissioner.

In this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. for negligent personal injury the plaintiff, Joseph Schroeck, has recovered a judgment against the Terminal Railroad in the sum of $25,000. Joe is an electrician, particularly a lineman, and has been employed by the Terminal since October 1945, having spent the previous twenty-two years in the electrical department of Laclede Gas Light Company. For the Terminal he does line and electrical work, cable work, sets poles, hangs transformers and assists in maintaining the distribution of electricity to the signal towers. On October 22, 1951, the electrical foreman instructed Joe, as lead man of a six-man crew, to get three transformers from the shop at Twentieth and Market Streets, load them on a truck and unload them on the sidewalk at the third pole on Fourteenth and Poplar Streets. At some future time they were to be placed in the diesel house nearby. One of the transformers weighed 1000 pounds, another 500 pounds, and the third 300 pounds. The truck stopped beneath the pole where they were to be unloaded. They were to be lowered from the truck to the sidewalk by means of a block and tackle attached to the light pole. Joe, being the only lineman, fastened on his climbers and safety belt, took his hand line, all of which he personally furnished, climbed the pole and fastened the block and tackle in the desired position on the pole, the five lines, particularly the fall line, dangling down the side of the pole. As he was descending the pole with his climbers and was twelve to fifteen feet from the ground the spur on his left climber 'broke out' and he fell to the ground and was injured.

In his petition and his separate instructions to the jury Joe alleged and hypothesized two grounds of negligence, both having to do with the defendant's failure to furnish a reasonably safe place to work and reasonably safe appliances. One instruction, the second, stated the defendant's duty to furnish a reasonably safe place to work, it set forth the task to be performed and Joe's part in accomplishing it--that is the climbing of the pole and the fastening of the block and tackle for the purpose of lowering the transformers from the truck. The instruction then hypothesized the fact of the ropes hanging down alongside the pole and that as he descended he called out to his fellow workers to hold the ropes away from the pole so as not to interfere with his descent. Nevertheless, unknown to him in time, a rope came in contact with the pole at the precise point he placed the spur into the pole, causing the spur to break out and him to fall. The first instruction hypothesized the defendant's liability upon a finding that the manner or method by which he was directed to unload the transformers was not a reasonably safe method because the pole was an exceedingly hard pole and on this occasion was wet and slippery, as the defendant could have known, and that there was at the time available to the defendant another reasonably safe method of unloading the transformers--the use of a derrick.

Upon the essential merits of the appeal the Terminal urges that its motions for a directed verdict should have been sustained as to both charges and hypothesizations for the reason that the plaintiff's evidence was insufficient to support the inference and finding of negligence in either respect. In this connection it is urged that the court prejudicially erred in giving the jury instructions one and two for the reason that there was no evidence to support either theory of negligence and as to the second theory it is also urged that there is no evidence from which the inference could be drawn that failure to use a derrick was the proximate cause of the plaintiff's injury. And in connection with the second theory it is said that the court prejudicially erred in permitting an expert witness called by the plaintiff to express the opinion that the use of a block and tackle was 'extremely dangerous.'

But, as to instruction two and its hypothesis, this case is unlike the F.E.L.A. cases of Tankersley v. Southern Ry. Co., 73 Ga.App. 88, 35 S.E.2d 522, 524; Southern Ry. Co. v. Bradshaw, 73 Ga.App. 438, 37 S.E.2d 150, and Southern Ry. Co. v. Bradshaw, 76 Ga.App. 364, 45 S.E.2d 693. In the Tankersley case a lineman fell when his climber spur 'broke out' upon being stuck into a weather crack in a pole. It was pointed out that there was no claim of a defect in the climber, there furnished by the employer, or that the pole was rotten or defective in any respect other than the crack, and it was emphasized that it was a part of the plaintiff's duties to maintain the lines and in so doing to climb poles with the climbers. In these circumstances the Georgia court concluded that Tankersley's petition, 'construed most strongly against the plaintiff,' failed to show that the injuries sued for were caused by any negligence on the part of the defendant 'but clearly shows that the injuries resulted from the plaintiff's negligence alone.' In the Bradshaw cases an experienced signal maintainer relied upon the fact that his employers had furnished him 'pole hooks' (climbers) instead of 'tree hooks' with which to climb a tree, tree hooks being made with much longer spurs that would penetrate the hard bark of trees and not 'break out' so easily. It was also claimed that the employer was negligent in not furnishing a ladder rather than the pole climbers. It was held, as against a demurrer, that the petition charged negligence on the part of the railroad consisting in its failure to provide the plaintiff with reasonably safe tools and appliances. But it was held, granting that tree hooks with longer spurs were superior devices for tree climbing, that 'such evidence does not show that regular pole hooks are not reasonably safe and suitable for the use intended, or that the defendant was negligent in furnishing them to its signal-system employees.' It was also pointed out, as the appellant emphasizes here, that the employer was not bound to furnish the latest or best appliances for the use of its employees, and it was held that the evidence did not support the verdict for the plaintiff and his judgment was reversed.

But in this case, in addition to the pole's being exceptionally hard and wet and the climber breaking out, it was hypothesized that one of the ropes dangling alongside the pole became caught in the spur, or between the spur and the wood, and thus the spur was caused to break out and Joe to fall. The electrician's helper testified that it was a part of his and the crew's duty to hold the ropes out from the pole so that they would not interfere with the lineman's descent. He heard Joe 'holler down' about the ropes; he looked up and saw the hand line (the line furnished by Joe) 'hanging back,' and so he took the hand line and held it away from Joe's back, the pole and the climbers. Brown and Smith were on the truck putting a sling around one of the transformers. Edwards was the truck driver and not concerned. The helper, McEvoy, said, contrary to Thomas' testimony for the defendant that he held the fall line, that Thomas did not hold any of the five ropes connected with the block and tackle, particularly the fall line, away from the pole. In fact this witness said that he was looking and he saw the fall line hanging down on the east side of the pole, Joe was descending on the south side, the other four ropes hanging down on the north side. Joe testified that when he was about three-quarters of the way down, and after he had told his fellow crew members to hold the ropes out, he 'felt something on my foot there--see,' and then he 'couldn't get in and I broke out.' At that moment he looked down and saw 'that inch rope' dangling on the pole, it was 'inside of my left foot' right at the instep. In these circumstances the jury could find that the spur was caused to 'break out' by reason of his fellow employees' failure to heed Joe's warning and their duty with respect to holding the ropes away from the pole (Howard v. Missouri Pac. R. Co., Mo., 295 S.W.2d 68, 72) and the inference and finding of proximate cause and consequent negligent injury was a matter upon which reasonable minds could differ; the proof supports the hypothesis of the instruction, and was for the jury's determination. Schillie v. Atchison, T. & S. F. Ry. Co., 8 Cir., 222 F.2d 810; Wiser v. Missouri Pac. R. Co., Mo., 301 S.W.2d 37.

The first and alternative hypothesis is not entirely free from difficulty (Louisville & N. R. Co. v. Davis, 6 Cir., 75 F.2d 849), but in view of our disposition of the appeal it is not necessary to determine the matter definitively. That there are alternative methods of performing a task is certainly a relevant circumstance to be considered in determining what a reasonable and prudent employer should have done in the circumstances (Stone v. New York, C. & St. L. R. Co., 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441), and it is assumed for the purposes of this opinion that failure to use an available derrick as contrasted with the use of a block and tackle, in the particular circumstances, is sufficient to support the inference of breach of duty with respect to furnishing reasonably safe appliances and a safe place to work. Spencer v. Quincy, O. & K. C. R. Co., 317 Mo. 492, 297 S.W. 353; Perryman v. Missouri Pac. R. Co., 326 Mo. 176, 31 S.W.2d 4; Rogers v. Missouri Pac. R. Co., 352 U.S. 521, 77 S.Ct. 459, 1 L.Ed.2d 515; Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d...