Walker of Estate of Walker v. Missouri Pacific Railway Company, a Corp.
| Decision Date | 08 July 1922 |
| Parties | JANE WALKER, Administratrix of the Estate of WILSON WALKER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Butler County Circuit Court.--Hon. Almon Ing, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
James F. Green and J. C. Sheppard for appellant.
(1) The court erred in permitting the witness Malone to state his conclusion that the rod across the door made it less convenient and more dangerous for persons entering the caboose from the flat car. Morgan v. Hinge Manufacturing Co., 120 Mo.App. 590, 608-9; Nash v. Dowling & Cavanaugh, 93 Mo.App. 156, 164; Koons v Railroad, 65 Mo. 592; King v. Railroad, 98 Mo 235; Miniea v. Cooperage Co., 175 Mo., App. 91, 110. (2) To maintain a cause of action against his employer for injuries, the servant must have been in the performance of some duty for the master at the time of his injury. Wilson Walker was not so employed at the time of his death. He was riding on a flat car from his place of work to his home, and undertook to pass from that car into the caboose while the train was in motion. This was wholly for his own convenience and had nothing whatever to do with his duty to the master. Forlouw v. Athletic Mining and Smelting Co., 209 S.W. 117, 120; Stagg v. Edward Westen T. & S. Co., 169 Mo. 489; Barry v. Railroad, 98 Mo. 62, 70; Rigley v. Wabash R. R. Co., 204 S.W. 737; Leak v. Kans. & Tex. Coal Co., 80 Mo.App. 374; Galveston, H. & S. A. Ry. Co. v. Davis, 23 S.W. 1019; Shadoan's Admr. v. Cincinnati N. O. & T. Ry. Co., 82 S.W. 567; Martin v. K. C., M. & B. R. R., 27 So. 646. (3) It is the duty of the master to use ordinary care to furnish the servant with a reasonably safe place to work, or a reasonably safe way to and from work. Hayes v. Berry, 184 S.W. 913; Powell v. Walker, 195 Mo.App. 150, 185 S.W. 532. (4) Under the doctrine of assumption of risk as adhered to by the federal courts, Walker clearly assumed such risk as a matter of law. This for two reasons: First because the petition pleads and instruction No. 1 requires the jury to find, and the evidence shows that Walker had been in the habit of going through the door of the caboose across which was the iron bar; second, Walker must be presumed to have known the rod was across the door, and the attendant danger, if any, in passing through the door, in view of the fact that the caboose had been in use in the same condition from the time he began work with the extra gang, and the rod across the door was obvious to the most casual observer. So that he is conclusively presumed to have known of its presence, even conceding for the purpose of argument that he had no actual knowledge of the fact. 1 Roberts Federal Liability of Carriers, pp. 986 to 1008, and cases there cited; Seaboard Air Line R. R. Co. v. Horton, 233 U.S. 492, 504; 34 S.Ct. 635, 58 L.Ed. 1062; Patton v. T. & P. R. R. Co., 179 U.S. 658, 21 S.Ct. 275; Butler v. Frazier, 211 U S. 495, 29 S.Ct. 136; Thomas v. Mo. P. R. R. Co., 109 Mo. 198.
No brief for respondent.
Action for damages under the Federal Employers' Liability for the death of Wilson Walker, a minor. Judgment for plaintiff for $ 6000 and defendant has appealed.
The defendant operates a railroad running east from Poplar Bluff, Missouri, and is engaged in interstate commerce. In August, 1920, defendant was engaged in building a grade and laying rails thereon to construct two switches about ten miles east of Poplar Bluff, each of which was to connect with its main line at both ends. A number of men who were employed by defendant and engaged in this work lived in Poplar Bluff and were conveyed to their work each morning on a passenger train and returned in the evening on a work train. This work train consisted of an engine, several flat cars and a caboose. This train was used to haul dirt and gravel to the place where the grade was being built. The dirt was unloaded by pulling a sort of plow along on the flat cars and pushing the dirt off on either side which was then put in proper place by the workmen. The flat cars were connected with each other by an apron that covered up the coupling and permitted the plow to pass over from one car to another without catching. The workment in returning home in the evening rode on these flat cars and in the caboose. The caboose had a door in the side and also a door in each end but had no platform at the ends. There was no apron to cover the coupling between the caboose and flat car next to the caboose, and persons passing from the flat car to the caboose must step across the open space between them which was said by some witnesses to be eighteen inches and by others to be three feet. There was an iron bar across the door of the caboose about four or five feet from the floor. Wilson Walker, the deceased, was eighteen years of age and was working for defendant at the time of his death. On August 10th, the deceased, while returning to Poplar Bluff with other workmen, was riding on the flat car next to the caboose and attempted to pass from the flat car into the caboose through the end door while the train was in motion, and in stepping from the flat car into the end door of the caboose his head struck the iron rod that was across the door and he fell down between the cars and was run over and instantly killed. He had been working for the company about three weeks. There was some testimony tending to show that he knew the iron bar was there across the door and some that he did not know it was there. There was also some testimony that the place where he was working on that day was on the switch that was being built and some that he also worked on the main line on that day. There was some evidence that the switches were so nearly completed at that time that they were used for the passage of interstate trains while other evidence was to the contrary. Other facts will be noticed in the course of the opinion.
The errors assigned relate to the insufficiency of the petition, the admission of testimony, giving and refusing instructions and excessiveness of the verdict.
Some evidence was admitted that was objected to on the ground that it was stating a conclusion. We do not think this reversible error in this case but on a retrial, witnesses should state facts and let the jury draw the conclusions.
Defendant insists that its demurrer to the evidence should have been sustained. That was properly overruled. The evidence tended to show that the deceased was engaged in work which would make the federal statute applicable and the employees were permitted at will to pass from the flat cars to the caboose and vice versa. There was some evidence that deceased had not previously passed from the flat cars into the caboose and that his attempt to do so at the time he was killed was his first attempt to so pass. If he had not previously passed through the door, then the physical facts were such, coupled with the evidence of other workmen that they had worked on the same train for a longer time than deceased had worked there without discovering the rod, that the jury could well have believed that the deceased did not know of the presence of the bar across the door at the time he attempted to pass through it and that it was so dark at the time that the rod could not be readily seen by him as he approached the door. There was an abundance of evidence to justify a finding that the rod across the door made it unsafe for one passing into the caboose from the flat car. There was also some evidence that when a caboose of that kind was used with a stock train or through freight trains when men other than the trainmen might be riding in the caboose, the bar across the door was necessary to prevent accidents by those men falling out at the door. It might also be necessary in order to prevent workmen on this train who might be riding in the caboose from falling out in case of a stop or sudden jerk of the train. In this condition of the testimony, there were two propositions on which to base negligence of defendant. First, in maintaining the bar across the door at all, but if that were not negligent, then whether the defendant should have had a light there at the time of this accident so a person who did not know of the presence of the bar across the door could see it and avoid being hurt by coming in contact with it. We think the evidence was sufficient to take to the jury the question of defendant's negligence. The evidence was not sufficient to justify the court in declaring as a matter of law that the deceased assumed the risk. He could not be held to have assumed the risk unless he knew of the presence of the bar across the door and that fact is not certainly shown.
Before passing to a consideration of the instructions it may be well to note that in passing upon cases arising under the Federal Employers' Liability Act, we are bound by the law as construed and held by the federal courts and not those of our own state courts in cases arising under the state law. [Seaboard Air Line R. R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062.]
It is also held in the same case and many others by the United States Supreme Court "that when an employee knows of the defect and appreciates the risk that is attributable to it then if he continues in the employment without objection or without obtaining from the employer or his representative an assurance that the defect will be remedied he assumes the risk even though it arises out of the master's breach of duty ." (The italics are ours.) It will thus be seen that under the federal rule, by which we are bound in this case, the...
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