Ward v. Kurn

• Decision Date: 04 November 1942
• Docket Number: No. 26130.,26130.
• Citation: 165 S.W.2d 290
• Parties: WARD v. KURN et al.
• Court: Missouri Court of Appeals

165 S.W.2d 290

WARD v. KURN et al.

No. 26130.

St. Louis Court of Appeals. Missouri.

November 4, 1942.

Rehearing Denied November 17, 1942.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by William Ward against J. M. Kurn and another, as trustees of the St. Louis-San Francisco Railway Company, a corporation, for injuries sustained when plaintiff fell from a refrigerator car owned by defendant. From a judgment for plaintiff after denial of defendants' motion for peremptory instruction, defendants appeal.

Reversed.

M. G. Roberts, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for appellants.

Wayne Ely and Tyree C. Derrick, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff when he fell from the door of a refrigerator car which was standing in the Chouteau Avenue yards of the St. Louis-San Francisco Railway Company, in St. Louis, Missouri. The defendants are the trustees in charge of the operation of the Railway Company. Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendants, in the sum of $2,750. Judgment was entered in conformity with the verdict; and defendants' appeal to this court has followed in the usual course.

Plaintiff is a banana inspector in the employ of Kroger Grocery & Baking Company, the consignee of the car from which he fell.

Whenever a shipment of bananas is set out in the Railway Company's yards for delivery to the Kroger Company, plaintiff's duties require that he go to the yards, open up the car, and inspect the contents before the bananas are unloaded and placed in the Kroger Company's warehouse, which is located adjacent to the point where the cars are placed. Other employees have similar duties with regard to the inspection of other types of fruit and produce.

Quite often in the course of his work, and especially during the cold weather, plaintiff would find it expedient to make a joint inspection with one Holland, an inspector for the Western Weighing and Inspection Bureau, which is an organization maintained by the railroads themselves for the inspection of perishable fruits and vegetables carried over their lines. Apparently the Bureau is designed to function in those cases where it is either known or anticipated that a claim will be filed against a shipment, which, in the case of bananas, is the more likely to occur in cooler weather, if the bananas have been allowed to chill.

On the morning in question plaintiff went to the yards to inspect a car of bananas; and being desirous of having a joint inspection, went first to an open car of tangerines to contact Holland, if he should be inside the car. The tangerines were likewise consigned to the Kroger Company, and the car was then in process of being inspected by one of the company's employees named Roster, who inspected produce of all kinds except bananas.

Roster happened to be in the extreme end of the car at the time, so that in order to make himself heard, it was necessary that plaintiff climb up into the car, although he had no duties to perform in connection with its inspection. It turned out that Holland had not as yet been in the car, but just then came up to the open door and agreed to join plaintiff in an inspection of the car of bananas which was standing on the same track adjoining the car of tangerines.

A refrigerator car is constructed with a doorway in the center of either side of the car, the top, sides, and bottom of which are beveled so that the inside of the doorway is smaller than the outside. Each of such doorways has two doors which swing from the respective side walls of the doorway, and likewise have beveled edges so as to fit into the bevel of the doorway, the whole purpose being to make the car, when sealed, as nearly airtight as possible. The doors come together in the middle when closed; and because of the manner in which their beveled edges are made to fit the one upon the other, the door on the right-hand side must be closed last, and opened first.

A mechanical device which is attached to the exterior of the right-hand door, and which is operated by a lever, serves to lock or unlock the doors. Fastened to the side of the car immediately below and practically in the middle of the doorway is a latch, which consists of a metal bar about five inches long and an inch and a half in width. The latch is hinged at only one end, and may be moved up to a vertical position where it extends about an inch and a half above the bottom of the doorway, and holds the left-hand door tightly closed while the right-hand door is being opened. For the left-hand door to be opened, the latch must of course be dropped down below the bottom of the door. Ordinarily the latch may be moved by hand, but when, for any reason, it fits so tightly that this is impossible, the practice is to drive it down with a hammer which the one who is to open the doors customarily carries along for that particular purpose.

The car in question, which was owned by the Burlington lines, had, on the day previous to plaintiff's injury, been transported by defendants and set out in the yards at the place where it was standing when plaintiff was injured. The car doors were of course closed and sealed when the car was delivered and set out, and in fact were not opened until a very short time prior to plaintiff's injury, when Roster opened them so that he...