Stevens v. Missouri Pac. R. Co.
| Decision Date | 12 March 1962 |
| Docket Number | No. 48741,No. 1,48741,1 |
| Citation | 355 S.W.2d 122 |
| Parties | Charles L. STEVENS, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
George W. Holmes, Mark M. Hennelly, Allen D. Churchill, St. Louis, for appellant.
Jo B. Gardner, Monett, for appellee.
HOUSER, Commissioner.
This is a suit against Missouri Pacific Railroad Company for damages for personal injuries sustained by Charles L. Stevens when an explosion occurred in a fire on the property of the railroad. From a judgment for $27,000 entered upon a jury verdict in that sum the railroad has appealed.
The petition alleged that while plaintiff was on defendant's premises in Sylamore, Arkansas, with the actual knowledge of defendant, and while defendant's work crew was burning various materials and objects in a fire within a few feet of where plaintiff was standing (the fire, materials and place where it was burning being under defendant's exclusive control) defendant, by the carelessness and negligence of its employees, and without warning to plaintiff, 'caused, permitted and allowed a sudden and violent explosion in said fire which was of such a nature and character that it would not have happened except for the presence of some unusual, dangerous and explosive substance; that the nature and character of such items are peculiarly within the knowledge of defendant and are not known to plaintiff'; and that as a direct result of defendant's negligence foreign objects flew into plaintiff's eyes and body to his great injury.
The answer, after denying generally, affirmatively pleaded contributory negligence and that plaintiff knowingly trespassed and came onto defendant's property for his own convenience, not for any purpose connected with defendant's business or for the common or mutual interest or benefit of the parties, and without any inducement by defendant.
Appellant's point of chief reliance is that at the time and place of injury plaintiff was a trespasser and that the general rule of nonliability of a landowner for injuries to a trespasser is applicable.
Charles Jeffery, foreman of a scaling gang, lived in a railroad bunk car. One of the duties of his gang was to use dynamite, detonated by fuse caps. Railroad regulations required that dynamite caps be kept apart, in the tool car, under lock and key. Charles Jeffery died. James Hughes, a member of the gang, and Tuck Brady, interim foreman, accompanied Mr. and Mrs. Henry Jeffery, relatives of deceased, to the bunk car to sort out and take the latter's personal effects. They unlocked, entered and searched the car. In a desk drawer Hughes found a box containing 50 dynamite caps. Hughes took these caps and 'locked them up with the others' (presumably in the tool car). Henry Jeffery found a small package of dynamite caps in a little closet in the end of the bunk car. They were in a box. Without counting them he put them back and left them in the closet. He saw some clothing, paper and other items in the closet. When they left they locked the car. Charles Jeffery's successor, Hubert Jeffery, ordered the car brought to Sylamore, Arkansas. After it arrived, locked, he unlocked it to see what kind of living quarters he was going to have. Finding the floor covered with newspapers and time rolls, he picked up the paper and threw it out of the car, got a broom and started sweeping the car. A section gang and an extra gang was on hand to help clean out the litter and trash. James Hughes and three men of the section gang, Gilihan, Beavers and Pitts, entered the car to help Jeffery clean it out. Hughes, called as a witness for plaintiff, testified that before he started cleaning out the car he told Jeffery, Brady and the members of both the section and extra gangs that he had found a box of caps, 'and for them to look out for these dynamite caps, that there could be some more.' The railroad employees who received this information, in addition to Jeffery, Brady, and the three above-named men who were helping inside the car, were Wadley, John Stevens (father of plaintiff), Pogue and Vines. The latter four were on the ground outside the car. Brady and Hughes had equal responsibility as foremen. Neither of them instructed the men to make a search of the trash and clothing before they handed it out of the car or threw it on the fire 'to see if there was anything in it.' On the morning in question Hughes looked for the caps 'everywhere imaginable in the car' but found no caps. Brady knew that a fire could set a dynamite cap off without a detonator 'in certain instances.' He said he would 'be afraid to throw it in the fire.' One of the railroad employees started a fire on the ground next to the bunk car door. The men in the car gathered up 'old personal effects that were of no use,' old socks, shoes, dress slippers, a slicker, cardboard cartons, boxes, cans, bottles, a jacket, jumpers, and threw the 'stuff' out the door of the bunk car or handed it to the men on the ground, who put the material on the fire. The fire was burning out in the open, alongside the bunk car, three or four feet from the ends of the ties.
Plaintiff testified he went onto the railroad property to ask his father, John Stevens, for permission to use the truck to take plaintiff's wife to the doctor. John Stevens was a member of the gang cleaning out and burning the refuse from the bunk car. Knowing that his father was going to work at the north end of the depot that day, plaintiff went to the depot, where he stayed about three minutes, talking to his brother. Then he walked north on the railroad property to the area where a motor car was being unloaded and watched this process for about 15 minutes. About fifteen people were there, including plaintiff's father. After the employees finished unloading the motor car they went to assist in the cleaning out of the bunk car. Plaintiff went with them. The explosion occurred about 15 minutes after the employees quit unloading the motor car.
Jeffery, inside the car, knew there was a fire outside. He saw the smoke but did not 'know what they were doing.' While the fire was in progress there 'was a big explosion sounded loud.' It was an explosion in the fire. 'Stuff started flying.' All of the men were 'knocked back'; some knocked down. The men in the car heard the explosion--the distinctive sound of a dynamite cap exploding--a sound 'like a dynamite cap or something exploded out there.' Brady, testifying for the dependant, said there was an explosion which 'sounded about the same noise as a stick of dynamite.' John Stevens, whose deposition was offered by defendant, testified it sounded like a dynamite cap; that he was familiar with dynamite caps, having handled them all his life since 1926; that it sounded to him like half a box of caps exploded. The explosion jarred the windows of the bunk car, blew out the fire, raised dust in the area, blew the materials in the fire 'to pieces' and blew a hole the size of a wash pan in the rock ballast where the fire had been burning. No warning was given that there was going to be an explosion. Several of the railroad employees, as well as plaintiff, were injured by flying fragments. After the explosion the men stood around, bleeding and suffering pain. Arrangements were made to transport all of the injured, including plaintiff, to a hospital in a nearby town. Plaintiff had slivers of metal in his leg. A round, copper fragment the size of a pea was removed from his knee. Plaintiff, familiar with the copper in dynamite caps, testified that the piece taken from his knee was similar in color, thickness, and shape to a dynamite cap. A piece of metal was extracted from plaintiff's eye. A fragment removed from Vines' face was 'a piece of a dynamite cap.' A small sliver was taken from Pogue's neck. Three pieces hit plaintiff's father in the eye, resulting in the loss of the sight of his right eye.
The railroad tracks run approximately north and south at Sylamore. The main line track lies west of the depot and a 'house' track lies east of the depot. A woven wire fence runs north and south along the east line of the railroad property. There is a community well located on the railroad property between the main line track and the house track. The bunk car was spotted on the house track. Sylamore has no water system. For 15 years or more the citizens of Sylamore have been permitted to use this well. The public has not been 'kept out of there at any time by the railroad.' Although people in Sylamore catch water off their houses and run it into cisterns, others do not have cisterns. The well is used without regard to the time of the year (both in wet seasons and during drouths). Plaintiff testified he would get water from the well on the railroad property whenever he wanted it. The public gains access to the well either by crossing a cattle guard in the line of the fence southeast of the depot and walking north past the depot to the well, or by entering the railroad property through a gate in the fence north of the depot and walking across a path which leads southwest from the gate to a point on the house track near the second Western Union telegraph pole north of the depot, and then either walking south down the house track to a point opposite the well or crossing the house track and walking south on the right of way between the main line and the house track to the well. According to the plat, the cattleguard is 80 feet south and 45 feet east of the depot; the well is 150 feet north of the depot; the bunk car was spotted approximately 260 feet north of the depot; and the gate in the fence is 290 feet north and 45 feet east of the depot. The gate and path have been used for at least 17 years by the public going to get water at the well and by employees going to work. Plaintiff's evidence spotted the door of the bunk car (from which the refuse was thrown and near which the fire was burning) at approximately the point where the...
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