Sweany v. Wabash Ry. Co.

• Decision Date: 18 February 1935
• Docket Number: No. 17646.,17646.
• Citation: 80 S.W.2d 216
• Parties: J.F. SWEANY, RESPONDENT, v. WABASH RAILWAY CO., APPELLANT.
• Court: Missouri Court of Appeals

80 S.W.2d 216

J.F. SWEANY, RESPONDENT, v. WABASH RAILWAY CO., APPELLANT.

No. 17646.

Kansas City Court of Appeals. Missouri.

February 18, 1935.

Appeal from Circuit Court of Daviess County. — Hon. Ira D. Beals, Judge.

REVERSED AND REMANDED.

M.E. Pangburn, H.B. Pyle and Sherman & Sherman for respondent.

Dudley & Brandom and Homer Hall for appellant.

SHAIN, P.J.

In this action the plaintiff, an employee of the defendant, seeks to recover damages against the defendant for injuries that plaintiff alleges he received while in the employ of defendant, as a section laborer.

The injuries of which complained are alleged as resulting from fumes which came from the railway ties that had been treated with creosote. It appears that the defendant, a railway company, shipped the creosoted ties in a box car and the ties are alleged as for use on the main line of the defendant railway company, over which trains were operated through Missouri, into and through Iowa and to Omaha, Nebraska, and various points in other states.

The plaintiff alleges that he was ordered into the box car where the ties were situate; that the weather was extremely hot and that the car was full of the fumes, which came from the creosote treated ties. The plaintiff further alleges that said fumes were very harmful to the health of those coming into contact therewith. Plaintiff alleges ignorance of knowledge, as to the alleged harmful effects of these fumes, but alleges that the defendant had, or should have had, such knowledge.

The plaintiff alleges that the defendant, with knowledge of the harmful effects of the fumes, carelessly and negligently placed him to work in an unsafe place; carelessly and negligently failed to warn him of the danger of working in the atmosphere in said box car, and carelessly and negligently failed to give him instructions as to the handling of said ties.

The plaintiff alleges good health, prior to the date of handling the ties, and alleges capability of earning power, prior to said work, of $75 per month.

The fourth paragraph of plaintiff's petition is as follows:

"Plaintiff further states that because of being compelled to work in said box car with said creosoted ties that the fumes and exudations from said ties permeated plaintiff's nostrils and lungs and that the fumes and exudations were highly poisonous and as a result of inhaling said fumes from said creosoted ties plaintiff was made ill and his whole system became deranged and disordered and since said date plaintiff has been unable to follow his usual avocation in life and unable to earn any wages whatsoever."

The plaintiff further described his ailments arising from said fumes as causing the lining of his nostrils, bronchial tubes and all of his respiratory tract to become inflamed and sore, plaintiff became afflicted with high blood pressure and rapid pulse, the blood was caused to become low in hemoglobin, liver became congested, kidneys diseased, urine acid, heart dilated and his whole nervous system diseased. The plaintiff further plead external symptoms of injury and plead all as the direct result of the aforesaid negligence of the defendant. The plaintiff further alleges incurring expense for medical attendance and medicine and plead pain and mental anguish and alleges his injuries as permanent.

The defendant interposed a demurrer to the plaintiff's petition, which was overruled by the trial court, and the defendant filed answer as follows:

"The defendant for answer to the petition states that it admits that it is a corporation duly organized and existing according to law and that it denies each and every other allegation in the petition.

"The defendant for further answer states that if the plaintiff received any injury at the time and place or in the manner alleged in the petition, which defendant denies, such injury was not received under any circumstances, condition or state of facts which would create or give rise to any right of action in this court against the defendant, and that whatever right might have been created or arisen, if any, was under the Workmen's Compensation Law of the State of Missouri, and that the plaintiff has no right to prosecute this action against the defendant.

"Defendant further alleges that whatever injury, if any, plaintiff received to his face, neck, breast, body, arm, legs or eyes was the result of his own carelessness and negligence in failing to protect himself from the effect of such creosote and unnecessarily causing and permitting the same to come in contract with such parts of body and his eyes, and not because of any fault or neglect of the defendant.

"The defendant for further answer states that the defendant was an experienced worker in the handling of ties which had been treated with creosote and knew the risk of injury therefrom, and that the risk of injury therefrom, if any there was, which defendant denies, was open and obvious to a man of ordinary prudence, and that the plaintiff assumed the danger and risk of injury from handling such ties, if any there was, which defendant denies, and the plaintiff is therefore not entitled to recover.

"Wherefore, having fully answered the defendant asks to be discharged with costs."

The issues were tried by jury resulting in a verdict in favor of the plaintiff in the sum of $5000. Judgment was entered in accordance with the verdict and the defendant has appealed.

OPINION.

The respondent was plaintiff below and the appellant was defendant below and in our opinion we designate parties as they appeared in the trial court.

The defendant under "Assignment of Errors" presents under twenty heads and follows by "Points and Authorities" under fourteen heads.

The defendant, under its assignment of errors, presents many conclusions of error without assignment of any reason and, under points and authorities, presents many matters arguendo without predication of error.

Gathered from defendant's specification, wherein reasons are assigned and from presentations arguendo, we gather the substance of claims of error to be: First, that the jurisdiction of the trial court is questioned in that the plaintiff has failed to plead a cause of action under the Federal Employers' Liability Act, under which act the cause was tried. Second, that the pleading presented no cause of action for which the defendant was liable. Third, that defendant's instruction, in the nature of a demurrer, should have been given by reason of failure of evidence to support the verdict. Fourth, that the court committed error in admitting testimony of medical witnesses based upon statements made by the plaintiff, evidence as to properties and effects of creosote and evidence of plaintiff's wife to the effect that her husband had never shown any signs of tuberculosis. Fifth, that the court erred in excluding testimony of employees working in treating plants, to the effect of not being injured by inhaling creosote fumes; in excluding evidence as to the manner in which ties were to be used; in excluding evidence that the plaintiff made no complaint to his foreman and in excluding testimony of the track supervisor that he had never known of men complaining of being injured by inhaling creosote fumes. Sixth, that the court erred in overruling the defendant's objections to hypothetical questions asked of plaintiff's medical witnesses; objection predicated on want of qualification of witness and in overruling the defendant's objections to questions asked the plaintiff's medical witnesess concerning the statements of plaintiff. Seventh, that the court erred by admitting, in rebuttal, testimony of employees working in a treating plant at Texarkana twelve years before, to the effect that they wore masks. Eighth, that the court erred in overruling the defendant's motion to discharge the jury because of the inflammatory and prejudicial argument of counsel for the plaintiff. Ninth, the defendant presents error in giving and refusing of instructions but does not specify wherein there was error, except as to plaintiff's instruction one, wherein it is claimed that the same is broader than the pleadings. Tenth, the defendant further claims the verdict excessive in that there is no evidence as to plaintiff's expenditures for medicine or medical attention. Eleventh, further defendant predicates error in refusing its Instruction D-4, which presented defense of non-liability.

As to the plaintiff's first contention, we conclude that by both the pleadings and the evidence this case comes squarely under the Federal Employers' Liability Act and that the rights and obligations of the parties hereto are to be determined by the provisions of that act. There is ample evidence from which it is shown that the ties were to be used on a main line of road engaged in interstate transportation. Such, we conclude, is sufficient. [Spaw v. K.C. Terminal Ry. Co., 198 Mo. App. 552, 201 S.W. 927; Second Employer's Liability Cases, 223 U.S. 1; New York Central, etc., R. Co. v. James Winfield, 244 U.S. 147, 37 U.S. Sup. Ct. Rep. 546; St. Louis, etc., R. Co. v. Seale, 229 U.S. 156.]

The gist of the plaintiff's alleged cause of action is based upon the principle that it is the duty of a master to furnish his employee a safe place to work.

The defendant, refusing to stand on its demurrer to plaintiff's petition, joined issue by its answer. This situation of fact eliminates questions of demurrers if there be a cause of action stated and supported by credible testimony.

The serious question, around which the presentation on the part of the defendant revolves, is as to whether or not the alleged negligence and the proof of facts of alleged negligence presents a cause of action against the defendant.

The plaintiff's cause of action is based upon assertion of harmful effects of creosote alleged as arising from the touch and from the inhaling of fumes. The defendant urges that the plaintiff, from his previous experience, had knoweldge of the...