Stewart v. St. Louis-San Francisco Ry. Co.

• Decision Date: 12 May 1924
• Docket Number: No. 3528.,3528.
• Citation: 262 S.W. 440
• Parties: STEWART v. ST. LOUTS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

262 S.W. 440

STEWART v. ST. LOUTS-SAN FRANCISCO RY. CO.

No. 3528.

Springfield Court of Appeals. Missouri.

May 12, 1924.

Rehearing Denied June 7, 1924.

Appeal from Circuit Court. Barton County; B. G. Thurman, Judge.

Action by Gertrude M. Stewart, administratrix of the estate of W. B. Stewart, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, H. W. Timmonds, of Lamar, and Mann & Mann, of Springfield, for appellant. C. W. Hamlin, and Hamlin & Hamlin, all of Springfield, for respondent.

BRADLEY, J.

This is an action for damages for the death of W. B. Stewart, husband of plaintiff administratrix. Plaintiff recovered, and defendant appealed.

The cause is bottomed upon the Federal Safety Appliance Act. Section 8618 et seq., U. S. Comp. Stat. The deceased was a freight conductor, and it is charged that he came to his death by reason of a defective step on the caboose. It is alleged that a portion of the tread of one of the sets of steps on the caboose was split off, and that by reason thereof deceased, in attempting to alight from the caboose, fell and received an injury which ultimately caused or contributed to his death. The answer is a general denial.

Defendant rests its case here on the assignment that the court erred in refusing its instruction in the nature of a demurrer at the close of the case. This assignment, it may be said,, is based upon four contentions: (1) That there is no substantial evidence tending to show that defendant knew or should have known of the alleged defective step; (2) that there was no substantial evidence tending to show that defendant failed in its duty to furnish safe and suitable steps; (3) that there was no substantial evidence tending to show that deceased was injured by reason of a defective step;. and (4) that there was no substantial evidence tending to show that the injury deceased received directly contributed to his death.

A demurrer to the evidence admits all facts which the evidence tends to prove, and the court must make every inference in favor of the party offering the evidence which the jury might, with any degree of propriety, have made. Maginnis v. Railroad, 268 Mo. 667, 187 S. W. 1165. This well-known, and frequently invoked, rule of law will be our guide in disposing of the demurrer at bar.

Section 2 of the Safety Appliance Act confers upon the Interstate Commerce Commission power to prescribe the character of appliances to be used. Pursuant to section 2 the commission ordered, respecting caboose cars with platform, the character of caboose in use when deceased was injured, "safe and suitable box steps leading to caboose. Lower tread of step shall be not more than 24 inches above top of rail." See 2 Roberts, Fed. Liability of Carriers, p. 1617.

The tread of the alleged defective step, before the piece was split off, was 9½ inches in width. About 2 inches were split off the outer edge of the bottom step, leaving a tread about 7% inches in width. The caboose had been in for repairs shortly before the alleged injury. The split showed that it was an old split. Granting that under the Safety Appliance Act such an issue may be for the jury, there was ample evidence to take to the jury the question of whether the defendant knew or should have known of the condition of this step.

The next question is: Was the evidence sufficient to raise a question of fact as to the failure of defendant to furnish safe and suitable steps? Defendant's caboose had steps at each corner. The Interstate Commerce Commission has prescribed no specific width for steps on platform cabooses. On side-door cabooses the Commission has described in detail the steps required. Steps to side-door cabooses are required to be at least 5 feet in length, 6 inches in width, etc. 2 Roberts, Fed. `Liability of Carriers, p. 1617. Defendant argues that the requirement respecting steps for side-door cabooses sets a standard for the width of the tread of a step leading to a caboose, and that after the piece was split off the step in question the tread was still over 6 inches in width. This reasoning is manifestly unsound. The side-door steps are entirely different from the box steps required for platform cabooses. Box steps, the treads of which are less than 9½ inches, might be "safe and suitable," but the question here is: Were the box steps, the upper tread of which was 9½ inches in width and the lower tread 7½ inches in width, safe and suitable? We have not found a construction of the "safe and suitable" requirement respecting the box steps for platform cabooses, but the phrase "secure sill steps" has been construed to mean steps that furnish secure footing for employees having to use them. Davis v. Reynolds (C. C. A.) 280 Fed. 363 ; Id., 250 U. S. 627, 42 Sup. Ct. 383, 66 L. Ed. 798. In the Reynolds Case the sill step in front of the engine had become slick from use. It appeared that the defendant had roughened the step by cutting nicks on the surface, but the nicks had somewhat worn down and had not been renewed. The condition of the tread is described by Knapp, Circuit Judge, who dissented, thus:

"Admittedly, all that can be said against it is that the tread, originally made rougher than any law or regulation requires by punching a few `nicks' on its surface, had become by wear a little smoother than it was at first. The tread proper showed no appreciable wear; but the tips of the nicks, or some of them, had partially worn off, the necessary result of use, even for a short time, as undisputed testimony shows. In every other respect it was the same as new. It had been inspected daily by defendant's agents, and at least quarterly by the government's agents, the last time within three months, and apparently no one who saw it before the accident ever had a thought that it was not in proper condition."

The question of the defective condition of the sill step tread in the Reynolds Case was held to be a question for the jury. To our minds the facts at bar on the point are much stronger than those in the Reynolds Case, and we hold that the question was properly submitted to the jury.

Was there any substantial evidence tending to show that deceased was injured because of the defective step? Deceased's run was from Springfield, Mo., to Newburg, Mo., and return. He had made the run to Newburg, and was returning to Springfield. At Crocker, a station west of Newburg, deceased had orders to meet an extra, and the order board was out. It seems that deceased's train pulled on west of the station to let the extra out, which was on a passing track and headed east. Then deceased's train backed up and headed in on the passing track to permit a regular train to pass on the main line. The last time any one saw deceased before he was injured was as his train approached Crocker. At that time he was in the caboose. The brakeman went forward and left him in the caboose. The next time he was seen he was east of the depot sitting on the platform fence, his trouser leg up and his leg bleeding. The track runs east and west through Crocker, and the depot is on the north side of the track.

Lee Donnell, one of the brakemen and a witness for plaintiff, testified:

"I was a member of Mr. Stewart's crew at, that time; our run was between Newburg and Springfield. We were called for 7:45 and left Newburg at 8:30 on the evening of the 11th of August before the accident. The accident occurred at Crocker, about 4 o'clock the morning of August 12th. The first information I had that Mr. Stewart had been injured, we had an order to meet an extra at Crocker, and the order board was out, and I got down on the steps to pick up the order, and the operator did not come out, so I rode down to drop off where I could see his signal from the caboose; then I walked back to the station. Track runs north and south, but they call it east and west. I walked back as far as the station. went in and read the orders and we pulled up to let this man [meaning train] in the side track. We had to back up and head in for No. 3. I got over toward the head where I could see the signal, and opened the switch and head in the other track; as I started to back up the rear brakeman—I went over with McDaniel and we assisted Mr. Stewart into the station. We found Stewart right on the platform, leaning against the fence east of the station. He had his trouser leg pulled up. could see his leg was bleeding some place. We went out and looked at the caboose and found outer edge of the lower step on the northeast corner of the caboose was broken off. Well, the bottom part was broken off even with the upright that comes from one step. It was split off back even where the upright comes up."

H. McDaniel, brakeman, also a witness for plaintiff, testified:

"I am a brakeman for the Frisco. I was in the employ of the Frisco at the time Mr. Stewart was injured and was a member of his crew. The origin of our trip was from Springfield; we went to Newburg. We left Newburg with this train on the evening before Mr. Stewart was hurt. The train was at Crocker when he was injured. It occurred about 3:30 a. m. When we got to Crockee we had to meet an extra train, and we pulled down the main line for some cause, and the extra headed out east. It was on the passing track. Then we started to back up the main line to head in to meet No. 6, another train. I was about ten carlengths from the head of the caboose to give the back-up signal Mr. Stewart called me to his assistance...