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

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 651,339 Mo. 594
• Parties: Harry Williams v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

98 S.W.2d 651

339 Mo. 594

Harry Williams v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

Supreme Court of Missouri

November 12, 1936

Rehearing Denied September 8, 1936. Motion to Transfer to Court en Bane Denied November 12, 1936.

Appeal from Circuit Court of City of St. Louis; Hon. O'Neil Ryan, Judge; Opinion filed at September Term, 1935 March 10, 1936; motion for rehearing filed; motion overruled October 8, 1936; motion to transfer to Court en Banc filed motion overruled at September Term, 1936, November 12, 1936.

Reversed.

T. M. Pierce, J. L. Howell and Walter N. Davis for appellant.

Plaintiff failed to make a submissible case, because his cause of action was predicated on the Federal Employers' Liability Act and because, under the decisions of the United States Supreme Court, plaintiff was a yard employee, and because, under said decisions, yard employees must look out for their own safety and the other employees were under no duty or obligation to watch out for the safety of plaintiff or warn him, unless he was actually seen to be in immediate peril and oblivious of his danger. The record contains no evidence that the employee wielding the sledge or the employee placing the chisel, or any other employee for that matter, actually saw him in a position of immediate peril and oblivious thereof. The evidence is otherwise. Toledo, etc. Railroad Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513; Martin v. Wabash Railroad Co., 30 S.W.2d 735; Allen v. Terminal Railroad, 68 S.W.2d 709. Plaintiff failed to make a submissible case, because the evidence shows that the work of cutting the rail with the sledge and chisel was done in the ordinary, usual and customary way. No negligence on the part of defendant was shown by the evidence, and, consequently, plaintiff assumed the risk of slivers flying from the chisel, the sledge or the rail. C. & O. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157; Schaum v. S.W. Bell Tel. Co., 78 S.W.2d 439; St. L.-S. F. Ry. Co. v. Burns, 56 S.W.2d 1027; So. Ry. Co. v. Burford, 90 S.E. 616; Union Pac. Railroad Co. v. Marone, 246 F. 916; Ruping v. Oregon Short Line, 171 P. 145.

N. Murry Edwards for respondent.

(1) This being a suit under the Federal Employers' Liability Act, appellant, the employer, is liable for injuries to respondent, the employee, resulting from the negligence of any of its officers, agents, or employees. Lock v. Railroad Co., 281 Mo. 532, 219 S.W. 921; Bird v. Ry. Co., 78 S.W.2d 391; 2 Roberts Fed. Liabilities of Carriers (2 Ed.), p. 1538, sec. 799; Chicago, R. I. & P. Ry. Co. v. Ward, 252 U.S. 18; Chesapeake & O. Railroad Co. v. De Atley, 241 U.S. 310; Central Vermont Railroad Co. v. White, 238 U.S. 507; Seaboard Air Line Railroad Co. v. Horton, 233 U.S. 492. (a) There is no Federal law of negligence. The court enforces the law of negligence of the State where the accident happened. Hawkins v. Railroad Co., 189 Mo.App. 218. (2) Plaintiff made a case for the jury and the court did not, therefore, err in submitting the same to the jury. Lock v. Railroad Co., 219 S.W. 919; Bird v. Ry. Co., 78 S.W.2d 389; Bender v. Kroger Groc. & Baking Co., 310 Mo. 488, 276 S.W. 405; Snyder v. American Car & Foundry Co., 14 S.W.2d 607; Bequette v. Pittsburgh Plate Glass Co., 200 Mo.App. 506, 207 S.W. 853; Brann v. Hydraulic Press Brick Co., 288 S.W. 941; House v. St. Louis Car Co., 270 S.W. 137; Bradshaw v. Lusk, 195 Mo.App. 201, 190 S.W. 400. (a) The evidence shows that plaintiff, while obeying the order of the assistant foreman Faust in steadying the rail did not know that the assistant foreman was going to place the chisel on the rail and that Moore was going to strike it and that chips and slivers were liable to fly through the air and strike and injure him and the danger was not so obvious that an ordinary prudent man would appreciate it. Therefore, plaintiff did not assume the risk of his injury. York v. Ry. Co., 62 S.W.2d 477; Bird v. Ry. Co., 78 S.W.2d 389; Williamson v. Union E. L. & P. Co., 219 S.W. 903.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action, under the Federal Employers' Liability Act (U.S.C. A. 51-59), for damages for personal injuries. Plaintiff was injured while working as a section hand on defendant's interstate track and the applicability of the Federal Act is conceded. Plaintiff obtained a verdict for $ 15,000 and, from the judgment entered thereon, defendant has appealed. Defendant contends that its demurrer to the evidence, at the close of the case, should have been sustained.

Plaintiff was working with a section crew, engaged in cutting a four-foot piece from a steel rail eight or nine feet long. To do this, some of the men steadied the rail at each end with claw bars, the assistant foreman held a chisel against the rail, and another man struck it with a sledge hammer. While plaintiff was helping to steady the rail, a piece of steel flew into his eye when one of the men struck the chisel. We note that the petition charged that defendant negligently furnished a chisel and sledge hammer for this work, which were defective, dangerous and not reasonably safe, and ordered plaintiff to do the work with these defective tools in use, which it was alleged were brittle and liable to chip and cause pieces to fly into the air. It is not necessary to consider these grounds of negligence in ruling on the question of the demurrer to the evidence because plaintiff had no evidence whatever to prove them. There is no evidence about the condition of the sledge hammer. As to the chisel, plaintiff had nothing more than evidence tending to show that the sliver which struck him came from it. Plaintiff made no attempt to show the existence of a defect in the chisel which would have been discoverable by reasonable care in inspection. [See Forbis v. Hessing, 328 Mo. 699, 41 S.W.2d 378; Gray v. Doe Run Lead Co., 331 Mo. 481, 53 S.W.2d 877.] Defendant's evidence was that the chisel was a new one which had only been used a few times and it had in court the chisel it claimed was used on that occasion, which showed no chipping. Defendant also had evidence that the chisels which it used for cutting rails were made by an established manufacturer; that they had used the same type and same make about five years; that they had discarded all other types formerly used because this type was "made out of softer material and doesn't mushroom and doesn't fly" and "would cut more rails with less breakage;" and that it was the best type they had found for cutting rails. Plaintiff did not offer any instructions submitting these grounds of negligence to the jury. Plaintiff also alleged, but did not offer to submit, the failure to furnish goggles as a charge of negligence. The court withdrew this as a ground of recovery, by giving a withdrawal instruction offered by defendant, and it is clear that plaintiff had no evidence which would support a submission on that round. [Schaum v. Southwestern Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439.]

The further grounds of negligence alleged, which plaintiff did undertake to submit to the jury, were the following:

"That defendant and its said servant negligently struck said chisel with said sledge hammer, as aforesaid, and negligently caused, suffered or permitted said piece of steel or metal, as aforesaid, to fly and strike the plaintiff in the face and the eye while he was holding and steadying said rail, as aforesaid; that the defendant negligently failed and neglected to furnish and provide plaintiff with a reasonably safe place within which to do the work required of him to be done; that the defendant negligently did said work in an unsafe and dangerous method."

Plaintiff had been working for defendant as a section hand about ten months prior to his injury. He had worked as a track laborer for defendant during 1917. He had occasionally worked for defendant at other times after that and had once been an assistant foreman for about ten days. He had also worked for the Wabash for a short time on track work. He had at other times during his service helped to cut rails. He said: "Maybe once a month or once every three or four months, whenever one broke, we had to put one in, in place of it." On the morning he was injured, he began work about seven-thirty. The gang was in charge of Foreman Mersmann and Assistant Foreman Faust. They got tools from a tool house near the crossing of the Wabash and the Terminal. They commenced the work of cutting rails into proper lengths to replace old rails and they first cut two 32-foot rails. A four-foot rail was required to replace an old rail between the rails of the Wabash track at the crossing. They had been at work about an hour when they commenced to cut this four-foot piece from the eight or nine foot rail. To cut this piece, one end of the rail was placed on a wood block, about ten or twelve inches high, and the other end was laid over the rail of a side track so that neither end touched the ground. Plaintiff said: "We were all there getting ready to cut the rail, and some of them had their foot on the rail, and Mr. Faust said to me, 'Take that bar and steady that rail.' . . . He was standing somewhere near the center by the piece of rail we were to cut." Plaintiff took a claw bar, put it under the rail north of where they were cutting at a place near where the assistant foreman pointed. He said that he could not have stood any farther away from where they were to cut than he did, to steady the rail. He said: "I put the bar under the rail and was getting ready to straighten up in position when all at once I heard a lick hit and something struck my eye. . . . I put the end of it (claw bar) under the rail, in order to raise it, to steady the rail, to keep the bar...