St. Louis-San Francisco Ry. Co. v. Rogers
| Decision Date | 10 January 1927 |
| Docket Number | (No. 83.) |
| Citation | 290 S.W. 74 |
| Parties | ST. LOUIS-SAN FRANCISCO RY. CO. v. ROGERS. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Randolph County; John C. Ashley, Judge.
Action by Omer B. Rogers against the St. Louis-San Francisco Railway Company. From the judgment for plaintiff, defendant appeals. Reversed, and case dismissed.
W. J. Orr, of Springfield, Mo., and Schoonover & Jackson, of Pocahontas, for appellant.
Booth & Higginbotham and Pope & Bowers, all of Pocahontas, for appellee.
The appellee instituted this action against the appellant for damages for personal injuries. The facts, stated most strongly in appellee's favor, are substantially as follows: Appellee was an employee of the appellant in its shops at Chaffee, Mo., on February 11, 1925. He had been working inside the shops or roundhouse about four or five days before his injury. Appellee was working under Fred Williams, a mechanic, as his helper. The locomotive on which he was working at the time of his injury had been in the roundhouse several days for repairs. These repairs consisted of work on the engine and also repairs on the tank. To make the repairs on the tank it was necessary to uncouple it from the engine and move it away from same. Williams was testing the superheater of the engine, and, not getting the expected pressure, he sent the appellee into the cab to see if the throttle was open.
There are three routes one may take from the front end of a locomotive to the cab; one along the running board to the engineer's front window, and one along the running board to the fireman's window, and the third along the ground to the rear of the engine and thence into the cab. If the engine and tank are coupled together, one entering the cab uses the steps on the tank. If the tank is separated from the engine, as it was in this case, one has to climb into the cab by means of iron handhold and rods that extend down the side of the cab. The appellee was on the running board that runs along the side of the boiler. He went to the door or window of the cab on the right side of the engine and it was locked from the inside. He then descended from the engine to the ground and went back to the cab and caught hold of the iron rods that extended down the side of the cab and pulled himself up into the cab. The appellee had been on engines before that time two or three times, but had never been on an engine from which the tender was disconnected. They had been working on the engine about 30 minutes at the time of the injury. The appellee had performed this work that he was called upon to do once or twice before and in the same manner that he performed it at the time he was injured.
In order to test the superheater the throttle to the engine must be opened. The throttle is located in the cab of the engine alongside the engineer's seat. It is an appliance which the engineer uses to apply the steam when he is operating the engine. The engineer works it with his left hand while seated in his seat. It is easily operated. The throttle was about as high from the lower deck of the cab as a man's head. There is a piece of steel, called an apron, attached to the engine by hinges which covers the space between the engine and the tank when the engine and tank are coupled together. When the tank is separated from the engine the apron drops down in a vertical position. When the tank and engine are coupled together the loose side of the apron rests on the floor of the tank, which allows it to move when the engine and tank are in motion. When it is necessary to couple the tank to the engine the apron must be elevated so as to allow the floor of the tank to run under it. The apron makes the floor between the engine and tank continuous when they are connected. The usual and proper method of elevating the apron so that the tank may run under it when coupled to the engine was to support the apron with a square oak stick about 22 inches long having a blunt end and a sharpened end; the blunt end resting on an iron projecting from the engine, and the sharpened end fitting into one of the indentations on the under side of the apron. The apron at the time of the injury was elevated by this prop in the usual and proper manner. The space between the inner edge of the apron and the fire box of the engine was 24 inches in width.
When the appellee reached the cab on the engineer's side he found the throttle standing nearly open and extending back over the engineer's seat. The appellee reached up and took hold of the throttle to see if it was entirely open and in doing so placed himself in a pulling position, putting his left foot back on the apron and his right foot up on a step leading to the engineer's seat. The apron gave way and precipitated the appellee into the pit, causing the injuries of which he here complains. The mechanic, Fred Williams, under whom the appellee was working, had been upon the cab a few minutes before the injury and had pulled open the throttle himself. He went upon the cab from the same point the appellee went upon it. He noticed that the apron had been propped up for 30 minutes or an hour. He did not notice when it was first propped up. The apron had been propped up for the purpose of connecting the coal tender. To raise the apron required only about a minute. It is done merely by raising the apron with the left hand and placing the stick under it as above indicated. When appellee came from the front of the engine to the cab he was facing the tender or tank some 30 or 40 feet away from the engine. No one was then on the tender or tank and it was not being brought up to the engine. Appellee did not climb into the engineer's seat before he moved the throttle. In moving the throttle it was not necessary for the appellee to place either foot on the apron.
The appellee alleged that it was his custom in the performance of his duty and a necessary part of his duty to step back with one foot on the apron which connected the cab or engine with the tender or tank attached to the cab or engine; that at this particular time he adopted the usual and customary course in performing his duty; that another one of appellant's employees had disconnected the tender or tank from the cab or engine and such employee, in the usual course of his employment, had placed a stick under the apron which is used to connect the engine and tender and left the apron temporarily propped in a horizontal position easily thrown down; that the act of raising said apron and propping it took only a very few seconds of time; that the fellow employee propped up the apron and negligently and carelessly left it so propped for a long and unnecessary period of time; that the appellee did not know that the apron was temporarily propped and believed that it was in its usual safe condition; that in performing his duty as an employee of the appellant in closing the throttle he braced himself and placed his left foot on said apron, and in doing so the apron fell, precipitating the appellee into the pit 4 or 5 feet deep. At the time of his injury appellee was 29 years old.
The appellant, in its answer, denied specifically the above allegations of negligence and set up the affirmative defenses of contributory negligence and assumed risk on the part of the appellee, and also set up that the appellee had voluntarily executed to the appellant a release of all liability, if...
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