Slater v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 06 January 1930 |
| Parties | JAMES E. SLATER, RESPONDENT, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Rehearing Denied 224 Mo.App. 824 at 835.
Appeal from Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.
AFFIRMED.
Judgment affirmed.
Jacobs & Henderson and Thos. E. Deacy for respondent.
Cyrus Crane, Geo. J. Mersereau and Geo. O. Pratt for appellant.
Trimble, P. J., absent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict in the sum of $ 12,500, but the court, believing it was excessive, required a remittitur in the sum of $ 8,000. From a final judgment in the sum of $ 4,500 defendant has appealed.
The facts show that plaintiff was a railway mail clerk in the employ of the United States Government. He had for some years been working in mail cars owned by the defendant and operated by it between Kansas City and Tulsa, Oklahoma. A mail car would be set in a train at defendant's station at Tulsa about nine o'clock at night, plaintiff would begin his work in the car about 9:30 and the train would leave that place about 11:50 of the same evening.
The evidence shows that the doors to the mail cars were usually closed and that the mail carriers would open the doors by hand, a slot in the lower part of the door being provided for that purpose. There was a rubber weather stripping where the door fit against the frame which sometimes caused the door to stick and when this occurred it was not always possible to open the door by use of the slot, and failing in this the mail clerks would climb up on the outside of the door and open it with their hands or feet. It was while plaintiff was trying to open the door to the mail car in question in the latter manner that he was injured by falling to the station platform.
The evidence shows that the doors to these mail cars were sliding affairs, running on rollers at the top and in a groove at the bottom. The door would open toward the front end of the car and to the right of a person facing the car. The door was two feet six inches and a quarter wide and about six feet in height. There was a mail catching apparatus that went across the door space and on the outside of the door. This consisted of an iron rod running parallel to the ground and about three feet nine inches above the threshold of the door. This rod near its left end was encircled by a short iron casting. At the bottom of this casting there was attached a hook or V-shaped arrangement to catch mail sacks while the train was in motion. This catching device was operated by a wooden handle attached to the upper side of the casting above and opposite to the V-shaped part of the apparatus. When the handle was pulled to-ward him down by a person stationed in the car the mail bag hook was caused to extend out away from the car in a horizontal position. When the catching device was not operating the V-shaped part of the catcher remained in a downward position along the side of the car and the handle above in an upward position. The rod that extended across the door acted as a pivot on which the casting, handle and hook operated.
The handle was twelve or fourteen inches in length and was fitted into an iron socket and the socket in turn was fitted on or was a part of the casting. This socket was two or three inches above the rod. When originally inserted into the socket the handle fit tight. The pocket was about two and a quarter inches deep and about an inch and three-eighths in diameter tapering down to an inch and a quarter. About an inch below the top of the socket, and on each side thereof, there was a hole drilled and the handle was fastened by screws inserted into these holes. The evidence shows that the weakest point of the handle was where the screws fitted into it. There was a space about four inches between the round rod and the door of the car. Between the casting and the left end of the rod there was a space of three or four inches on the rod which was encircled by a rubber bumper. There were two iron steps a short distance above the station platform and grab irons on each side of the door casing. These were provided for use by a man entering the door from the ground by stepping upon the steps and pulling himself up by means of the grab iron. The grab irons were of very little assistance to a man after he got upon the threshold of the door.
Plaintiff testified that he was injured about 9:30 P. M. of January 6, 1926; that he went to the door of the mail car in question and found the door shut and attempted to open it but was unable to do so. He then climbed on the threshold of the door by means of the steps and the grab irons and over the catcher with his hands. Placing his left hand on the rubber bumper he attempted to push the door open by the use of his right hand applied to the "opposite corner of the door."
There was other evidence showing that plaintiff's efforts resulted in the door opening.
Plaintiff testified that he was not pulling on the handle and had very little weight against it when he fell. The handle was examined after plaintiff fell and it was found that it broke where the screws entered it and at that point it was rotten from one-third to three-fourths of its diameter. One of plaintiff's witnesses testified that "the wood was old and rotten." There was other evidence that these handles were painted when they were inserted in their sockets by the defendant; that on the handle in question the paint was worn on the upper end; that it had the appearance of being weather beaten; that is, we take it, the part that was without the socket. The evidence shows that the whole of this catching device was at all times exposed to the weather.
There was testimony that when the doors of these mail cars would stick that it was the custom of the mail clerks to get upon the threshold of the door, take hold of the catcher handle and open the door in that manner. This practice covered a period of twenty years prior to the time plaintiff fell. The evidence shows the car in question was regularly inspected after each trip by defendant at both terminals, Kansas City and Tulsa, and that no defect was found in the car as late as the afternoon of the evening of the day that plaintiff fell. It was further shown that the car had been in the shop at Topeka for a general inspection, overhauling, repairing and conditioning as late as September 19, 1925. However, the evidence shows that it was not the custom to remove the handle from its socket in making the inspection of the catcher device; that the inspection of this device consisted of looking at the part exposed to see if it was broken, decayed or defective in any way and putting the device through the motions of catching a mail sack; that these handles were never removed from their sockets for inspection and were not replaced at any time unless they were broken or split "or something like that;" that if the wood had rotted in the socket the inspection given the handle by the defendant would not disclose this condition.
Defendant's coach yards' foreman testified that these handles were exposed to the weather; that snow and rain would beat upon them which would have a tendency to rot them. However, as before stated, the evidence shows that when these handles were originally inserted they fit tight preventing water from running into the socket. This car was built in 1910 and had been in service ever since that time. There was no testimony as to what time it would require for the handles to become loose in their sockets, excepting that defendant's general foreman in the passenger car department stated they would probably become loose in seventeen years and that there was very few handles that lasted that long.
Defendant insists that its demurrer to the evidence should have been sustained for the reason that there is no evidence tending to show that the handle was in a decayed condition where it broke. There was ample testimony to establish this fact. The handle introduced in evidence by the defendant and produced in this court by it was not the handle that broke, if plaintiff's witnesses are to be believed. Of course it was within the sphere of the jury to believe them.
A far more serious contention of the defendant is that the defect in the handle was a latent one and there is nothing to show that the defendant, by the exercise of ordinary care, could have discovered its defective condition. The case was tried upon the theory that the duty owed by defendant to plaintiff was that of ordinary care. However, we believe that defendant's liability was a question for the jury.
The evidence shows that the car in question was constructed sixteen or seventeen years before the handle broke. There is no evidence that the handle was ever replaced. The testimony shows that they were never replaced unless they were broken or split or showed from an inspection of that part of the handle exposed that they were not fit for further use. It is not necessary for us to pass upon the question as to whether from the testimony it may be reasonably inferred that this handle had been in place since the car was constructed. However, we think the evidence does show that the handle was an old one. It shows that the paint was worn off and that it was weather beaten. These...
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Slater v. Atchison, T. & S. F. Ry. Co.
...Court of Appeals of Missouri, Kansas CityJanuary 6, 1930 224 Mo.App. 824 at 835. Original Opinion of January 6, 1930, Reported at: 224 Mo.App. 824. Judgment Bland, J., concurs. Trimble, P. J., absent. OPINION ON REHEARING. In the motion for rehearing and especially in the suggestions in sup......