Sweeney v. Terminal R. Ass'n of St. Louis

• Decision Date: 07 December 1937
• Docket Number: No. 24099.,24099.
• Parties: SWEENEY v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

110 S.W.2d 852

SWEENEY v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 24099.

St. Louis Court of Appeals. Missouri.

December 7, 1937.

Rehearing Denied December 22, 1937.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be published in State Reports."

Action by Clarence Sweeney against the Terminal Railroad Asssociation of St. Louis. From a judgment for plaintiff, defendant appeals.

Affirmed.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

Barak T. Mattingly and C. O. Inman, both of St. Louis, for respondent.

BECKER, Judge.

Plaintiff, in his action for damages for personal injuries brought under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), obtained a judgment against defendant in the sum of $4,000. Defendant in due course brings this appeal.

According to plaintiff's petition, while plaintiff, an employee of defendant, was helping carry a switch point weighing some six or seven hundred pounds, and was walking backwards, he had to step across a rail of the track upon which they were working, and in doing so stepped upon a greasy angle bar which was lying inside of the track and close to the rail, causing him to slip, fall, and injure himself.

The assignment of negligence in plaintiff's petition upon which the case was submitted to the jury was that the defendant's employees, within the scope of their employment, had negligently placed an angle bar in close proximity to the track when said employees knew or by the exercise of ordinary care would have known that plaintiff or other employees were likely to step and slip upon said angle bar and be injured, and that defendant negligently permitted said angle bar to remain in close proximity to the track when it knew, or by the exercise of ordinary care could have known, that it was likely to cause injury to plaintiff or other employees while engaged in their duties repairing said track and carrying materials thereto, although defendant knew, or by the exercise of ordinary care could have known, of the presence of said angle bar in time to have removed the same before plaintiff was injured, and thereby have avoided plaintiff's injuries.

Defendant's answer was a general denial coupled with a plea that whatever injuries, if any, plaintiff sustained, were the result of the risks, hazards, and dangers that he assumed in carrying a rail on and over the tracks of the defendant, and on which men were working fixing the tracks and roadbed, when he knew or ought to have known the condition of the roadbed and tracks, and which condition was obvious to him or could have been obvious to him, and which risks, hazards, and dangers were usual, ordinary, and incident to the work in which plaintiff was employed, and which were known to him, and he could appreciate, or which were so open and obvious that he could have known and appreciated them.

Defendant assigns as error the overruling of its demurrer offered at the close of the case because, under the evidence, defendant was not shown to have been guilty of any negligence; and plaintiff had assumed the risk.

This being an action under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), the question of negligence of the defendant and the assumption of the risk on the part of the plaintiff must be determined in conformity with the decisions of the federal courts. Pryor v. Williams, 254 U.S. 43, 41 S.Ct. 36, 65 L.Ed. 120; Chesapeake & O. R. Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 442, 73 L.Ed. 861; Chicago, etc., R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041.

It is the accepted rule that, when the employer claims the exemption that the employee assumed the risk of the employment in which he was engaged when injured, the employer must not himself have been guilty of negligence with respect to such employment. Choctaw, O., etc., R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; Union Pac. R. Co. v. O'Brien, 161 U.S. 451, 16 S.Ct. 618, 40 L.Ed. 766; Northern P. R. Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958; Northern P. R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 595. 29 L.Ed. 755.

Since then the employee assumes the risk of the dangers incident to the employment, but not the employer's negligence, we must first determine whether the defendant was guilty of negligence under the facts and circumstances shown in the record.

In the case of Sandidge v. Atchison, Topeka R. Co. (C.C.A.) 193 F. 867, 872, in the course of the opinion the court deals with the rules defining the nature and extent of the employer's duty in providing for the safety of his employees, and points out that, while the rules have often been stated and clearly defined, the real difficulty is in their application to the circumstances of the particular case. We quote the following from the opinion:

"In general terms, the degree of care required of an employer in protecting his employes from injury is the adoption of all reasonable means and precautions to provide for the safety of his employes while they are engaged in his employment, and this degree of care is to be measured by the dangers to be apprehended or avoided. DeGraff v. New York Cent. & H. R. R. Co., 76 N.Y. 125, 131.

"The employer, whether a natural person or a corporate body, is under obligation not to expose the employe in conducting the employer's business to perils or hazards against which he may be guarded by proper diligence on the part of the employer. Hough v. Texas Railway Co., 100 U.S. 213, 217, 25 L.Ed. 612.

"The care required of the employer is that of reasonable diligence; `and reasonable diligence implies, as between the employer and employe, such watchfulness, caution, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful and prudent officers ought to exercise.' Wabash R. Co. v. McDaniels, 107 U.S. 454, 460, 2 S.Ct. 932, 938 (27 L.Ed. 605).

"The failure of the employer to exercise such reasonable diligence, caution, and foresight as a prudent man would exercise under the circumstances is negligence."

We have examined the record in light of the rules as set out hereinabove and the further rule that, in determining whether plaintiff made out a case for the jury, plaintiff's evidence, whether contradicted or not, must be regarded as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and that defendant's evidence must be taken as false where it is contradicted by that of plaintiff, and that plaintiff is entitled to the benefit of every reasonable inference favorable to his case, which the evidence tends to support. Grubb v. Curry (Mo.App.) 72 S.W.2d 863; Marshak v. Grocery Co. (Mo. App.) 83 S.W.2d 185, 190; Freeman v. Terminal R. Ass'n (Mo.App.) 78 S.W.2d 559; Mick v. Thompson Co. (Mo.App.) 77 S.W.2d 470, 474; Howard v. Sacks (Mo. App.) 76 S.W.2d 460, 463; Steger v. Meehan (Mo.Sup.) 63 S.W.2d 109, 110.

The record discloses that on December 13, 1933, plaintiff was employed as a track laborer by defendant, a corporation engaged in interstate commerce between the states of Missouri and Illinois. Plaintiff's duties consisted in repairing and maintaining defendant's tracks. On the day in question he was working in the Madison yards in East St. Louis, Ill., as one of a gang of seven men working under a foreman named Barnes. At about 2 o'clock in the afternoon Barnes and the gang in which plaintiff worked undertook a repair on the main lead of the receiving tracks in the south end of the yard, which involved laying rails and repairing a switch. One of the items of the work was to remove a switch point, 16 feet long and weighing between six and seven hundred pounds, and replace it with a new one. The job had to be completed within the time limit of 35 minutes. While some of the gang were removing the old switch point, plaintiff, upon the order of his foreman, had been helping another worker doing work some 25 feet away. After the old switch point had been removed and carried to a place outside of the track, plaintiff was ordered by his foreman to come over and help carry the new switch point from where it was lying some 3 feet outside the track to the place where it was to be installed. Six men were assigned to this work, carrying the switch point with dogs or tongs, two men to each tong, one man on each side of the switch point, so that three men walked forward and three men backwards in carrying the switch point to its proper place on the track. Plaintiff was walking backwards and it became necessary that he step over a rail of the track which was 7 inches high, and when he did so he stepped on a greasy angle bar and his right foot slipped from under him, causing him to fall, his back striking the rail and his head the ties, causing him injury. The angle bar was about 2 feet long, 3 or 4 inches wide, and one-half inch thick, and was lying 5 or 6...