Walker v. Missouri Pac. Ry. Co.

• Decision Date: 08 July 1922
• Docket Number: No. 3067.,3067.
• Citation: 210 Mo. App. 592,243 S.W. 261
• Parties: WALKER v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

243 S.W. 261

210 Mo. App. 592

WALKER v. MISSOURI PAC. RY. CO.

No. 3067.

Springfield Court of Appeals. Missouri.

July 8, 1922.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Jane Walker, administratrix of the estate of Wilson Walker, deceased, against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Welker & Mulloy, of Poplar Bluff, for respondent.

COX, P. J.

Action for damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for the death of Wilson Walker, a minor. Judgment for plaintiff for $6,000, and defendant has appealed.

The defendant operates a railroad running east from Poplar Bluff, Mo., 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 10 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 workmen 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 fiat car next to the caboose, and persons passing from the fiat car to the caboose must step across the open space between them which was said by some witnesses to be 18 inches and by others to be 3 feet. There was an iron bar across the door of the caboose about 4 or 5 feet from the floor. Wilson Walker, the deceased, was 18 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 stale 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 lie 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. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

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 defeat 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 assumption of risk depends on whether or not the deceased knew before he attempted to pass from the flat car to the caboose that the bar was across the door. If he knew it was there and with that knowledge he attempted to pass, he assumed the risk and cannot base negligence on the bar being maintained there or the absence of a light.

Plaintiff's instruction No. 1 is objected to. It is very long, and we shall not reproduce it in full here. It contained the following language:

"And that defendant...