Schwartz v. Kansas City Southern Ry. Co.

• Decision Date: 10 January 1955
• Docket Number: No. 2,No. 44261,44261,2
• Parties: Jewell M. SCHWARTZ, Administratrix of the Estate of Edmund J. Schwartz, Deceased, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 236

275 S.W.2d 236

365 Mo. 17

Jewell M. SCHWARTZ, Administratrix of the Estate of Edmund J. Schwartz, Deceased, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Appellant.

No. 44261.

Supreme Court of Missouri, Division No. 2.

Jan. 10, 1955.

Motions for Rehearing, to Modify, or to Transfer to Court en

Banc Denied Feb. 14, 1955.

Richard S. Righter, Robert D. Youle, James F. Walsh, Kansas City, Lynn M. Ewing, Nevada, for appellant.

Sam R. Gardner, Jo B. Gardner, Monett, for respondent.

WESTHUES, Commissioner.

This is a suit filed by plaintiff Jewell M. Schwartz as administratrix of the estate of Edmund J. Schwartz, her husband, deceased, to recover damages for his death. A trial by jury resulted in a verdict and judgment for plaintiff in the sum of $22,500. Defendant appealed.

Plaintiff's cause of action was based on the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. Plaintiff's husband lost his life on August 27, 1952, when he was cutting weeds and brush on defendant's right of way in Vernon County, Missouri. The immediate cause of death was that a tractor Schwartz was using in mowing the weeds turned over and trapped him thereunder.

Plaintiff's case was submitted to a jury on failure of the defendant to furnish Schwartz a safe place in which to work; failure to warn of the dangerous condition of the ground by reason of the contour of the ground and the guy wires on the right of way; and failure to provide a helper or guide to assist in the work.

The defendant's principal point of defense on this appeal is, as it was at the trial, that Schwartz was not an employee of the defendant, but was an independent contractor. Further, if he was an employee, plaintiff's evidence was insufficient to sustain a finding that defendant failed to furnish a safe place to work.

The evidence showed the following: Schwartz was a farmer living near Richards, Missouri. In 1951, he entered into a contract with the defendant Railway Company to mow weeds or brush on the railroad right of way. The contract provided that Schwartz was to use his own tractor and mowing equipment at a stipulated price per hour. In July, 1952, a similar contract was executed whereby Schwartz agreed to mow weeds and brush on defendant's right of way by use of his own tractor and mowing machines at $3 per hour. In August, the section foreman notified Schwartz that mowing was to begin August 11. Under the contract Schwartz had the right to work any number of hours on any day he chose. Plaintiff testified that on Sunday, August 10, her husband began the work of mowing and put in a few hours' work on that day. On the morning of August 27, 1952, plaintiff took her husband in their automobile to a road crossing south of the Marmaton River, where his equipment was then located, to commence his work for the day. It was understood that plaintiff was to meet her husband at this crossing at 7:00 P. M. Mrs. Schwartz returned to the crossing and waited some time but her husband failed to show up. Plaintiff became alarmed and notified the section foreman and some of her friends. A search was made and Schwartz was found dead under the tractor which had turned upside down. Witnesses testified that the tractor had turned over near a guy wire which was anchored in the ground. At this point where the tractor turned over, there was an embankment upon which the railroad tracks were located. At the spot where the guy wire was anchored in the ground, there was a level space and on the lower side of the point where the wire entered the ground, it was level for about 3 feet. It is plaintiff's theory that Schwartz drove the tractor onto this level space where it struck the guy wire and then turned over, the 3-foot space not being of sufficient width for the tractor to pass. The slope from the top of the embankment down to the bottom was rather steep. It is also plaintiff's theory that the lower portion of the guy wire was hidden from view by the high weeds and brush. It is plaintiff's contention that the insufficient level space below the guy wire for the tractor to pass the wire itself plus the fact that it (the guy wire) could not be seen rendered the place unsafe for Schwartz; that defendant should have notified Schwartz of the danger or have sent a guide with him for the purpose of pointing out the danger. It was in evidence that a great deal of the space along the embankment was uneven and rough.

The Federal Employers' Liability Act, upon which plaintiff based her claim, eliminated from the law the defense of 'contributory negligence.' The plea of 'assumption of risk' was eliminated to the extent that an employer may not escape liability where negligence on his part in whole or in part contributed to the injury. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967. However, to establish liability, a plaintiff is required to produce evidence from which negligence may be inferred by a jury. In this case, plaintiff was required to produce evidence from which it could be inferred that the defendant was in some degree negligent in not furnishing plaintiff a safe place in which to work. Many hazards are encountered by employees in the industrial world that no amount of care or foresight can avoid. Apropos of this, note the following taken from the Tiller case, supra, 318 U.S. 69, 63 S.Ct. 452, 87 L.Ed. 610, 143 A.L.R. loc. cit. 975, 976, where Justice Frankfurter, in his concurring opinion, said: 'Industrial enterprise entails, for all those engaged in it, certain hazards to life and limb which no amount of care on the part of the employer can avoid. In denying recovery to an employee injured as a result of exposure to such a hazard, where the employer has in no sense been negligent or derelict in the duty owed to his employees, courts have often said that the employee 'assumed the risk.' Here the phrase 'assumption of risk' is used simply to convey the idea that the employer was not at fault and therefore not liable.'

In the case before us, Schwartz was employed to mow weeds and brush with his own mowing equipment upon defendant's right of way. The right of way consisted to a great extent of embankments with slopes of various degrees and an uneven terrain. Telephone and telegraph poles with guy wires are common and of general use on railroad right of ways. They were present on the railroad property where Schwartz was to do the mowing. It would certainly have been impossible for the defendant to have removed the guy wires and poles or to have provided a level terrain for Schwartz. It would also have been impractical to have provided a guide for the purpose of informing Schwartz of the location of the guy wires and poles or to inform him where, in the opinion of the guide, the slope was too steep for the tractor to be used with safety. Schwartz was an experienced operator of tractors and in all probability knew as much as anyone of the dangers of using tractors on a steep incline. Plaintiff introduced evidence that the weeds and brush were so high and dense as to obstruct the view of the lower part of the guy wire. The upper part of the guy wire and the pole to which it was attached were within view. But, be that as it may, Schwartz was employed for the very purpose of cutting the weeds and brush. Had the defendant cleared the ground before employing Schwartz, there would have been no weeds and brush to cut. Again, who could have made the place safe for such weed cutters? Further, the plaintiff says the level space below where the guy wire entered the ground was not wide enough for a tractor to pass. The level space was not intended to be used for that purpose. After viewing the case from all angles, we fail to see wherein the defendant was negligent or failed in its duty to Schwartz. Mowing weeds on the slopes of railroad embankments with tractor power is somewhat dangerous and cannot be made entirely safe. It is common knowledge that sometimes tractors do turn over when used on embankments. The operator of the tractor must use his own judgment and avoid the danger. No amount of care on the part of defendant could have eliminated the danger in this case. In the case of Eckenrode v. Pennsylvania R. Co., 3...