Wilson v. Missouri Pac. R. Co.

• Decision Date: 03 March 1928
• Docket Number: 26762
• Citation: 5 S.W.2d 19,319 Mo. 308
• Parties: WILSON v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

5 S.W.2d 19

319 Mo. 308

WILSON v. MISSOURI PAC. R. CO.

No. 26762

Supreme Court of Missouri, First Division

March 3, 1928

Motion for Rehearing Denied April 10, 1928.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Action by Bertha Wilson, administratrix of the estate of Luther C Wilson, deceased, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

James F. Green, of St. Louis, John B. Cole, of Joplin, and Thomas J. Cole, of St. Louis, for appellant.

Charles P. Noell, of St. Louis (Glen Mohler, of St Louis, of counsel), for respondent.

OPINION

RAGLAND, J.

Defendant was a common carrier of freight by railroad. Plaintiff’s intestate, while in the employ of defendant as brakeman, and while employed in interstate commerce, lost his life through its alleged negligence. This action is to recover the damages thereby sustained by his surviving wife and children.

The facts of the case are those which plaintiff’s evidence tended to establish; the defendant on its part offered no countervailing evidence, but rested on its demurrer at the close of plaintiff’s case in chief.

On the 28th day of December, 1923, employees of defendant were engaged at Leadanna, a station on one of its lines in this state, in moving a car loaded with coal from its main track to a siding, where they intended to set it opposite a coal bin. The shipment of coal had originated at a point in Illinois, and would be at its destination when the car was "spotted" at the coal bin on the side track at Leadanna. The deceased, Luther Wilson, was a member of the crew so engaged. An engine and two cars were involved in the switching movement. The engine was moving backward, pushing the two cars in a northerly direction. The car loaded with coal was on the north end. The height of this car from the bottom of the sill to the top was 4 feet. The coal came fully up to the top on all sides. On the east side, 10 or 12 inches back from the north end, there was a ladder consisting of three handholds or grabirons and a stirrup. The grabirons were placed at equal distances apart; the top one being 4 inches below the top of the car. The stirrup was attached to the sill; just how far it dropped below the sill was not shown. Right around the corner, on the east side of the north end, there was another ladder consisting of grabirons corresponding to those on the side; the top one being likewise 4 inches below the top of the car. The brake staff was at that end of the car.

As the cars approached the switch connecting the side track with the main line, Wilson walked over the coal from the south towards the north end of the car. When he reached the point where the ladder went down on the east side, he sat down on the side of the car. Presently he started climbing down the ladder. In his progress down he reached a point where he was standing with his left foot in the stirrup, holding the middle grabiron with his left hand, and with his right foot swinging free, as though he were about to disengage himself from the ladder and step down on the ground. At this juncture he suddenly sprang up, putting his right foot around on the end sill of the car, and throwing his right arm over the top end board of the bed. A portion of the board split off, and he fell backward, and was caught under the wheels of the moving car.

The top end board of the car was a pine board, 12 inches wide, 2 inches thick, and extending across the entire width of the car. The ends were bolted to uprights. Wilson weighed about 200 pounds. When he sprang up and grasped the board it split, and a strip off the top edge approximately 3 inches wide pulled away from the car at the east end; the west end because of a bolt through it remained attached. An examination of the board which immediately followed Wilson’s fall disclosed that there had been an old crack going through the entire thickness of the board and extending back about 18 inches from the east end; but that the split from the old crack on to the west end of the board was a fresh break. The board was otherwise sound apparently; at least the evidence does not show the contrary. There was an old bolt hole in the end that pulled loose; but there was no corresponding hole in the upright at that point. This led witnesses who examined it to believe that the board had not been originally prepared for the car of which it then formed a part, but had been taken from a dismantled one. However, had a hole been bored in the upright to receive a bolt, and a bolt inserted, all of which could have been done within 30 minutes, the splintered portion would probably have not pulled loose.

It is inferable from Wilson’s actions and the attending circumstances that he climbed down the ladder to throw the switch, but that, as he was about to step from the ladder to the ground, he discovered some condition that required the setting of the brake, and that his purpose in attempting to spring up on the end of the car was to get to the brake wheel. There is no other conceivable reason for his doing as he did. It does not appear, however, that there was any emergency requiring hurried action.

Plaintiff interrogated several of her witnesses with respect to the custom and practice followed by a brakeman in Wilson’s situation in getting to the brake wheel at the end of the car. Bowden, who had had considerable experience as car inspector and repair man in railroad yards, testified:

DIRECT EXAMINATION.

"Q. This place where you found this split, is that the place where brakemen usually grab in getting on the top of the car?

A. Yes; I noticed in my experience that they take hold of the end of the car about as often as they do the handholds, if they have got occasion to cross over the cars."

CROSS-EXAMINATION.

"Q. When you say that you have seen them take hold of the end of the car, the wooden part, that is when they are crossing from one side of the car to the other?

A. Yes, sir.

"Q. Walking along on this sill?

A. Yes, sir.

"Q. And they merely put their hand on the top of the end of the car to steady themselves; you never saw a man grab hold of the top of the car around the end of it to pull himself up from the ground, did you?

A. No, sir; just crossing over like I said, go from the side of the car across the end sill if he is going to cross over to the side of the car. * * * A brakeman or switchman engaged in switching this car in the yard down at Leadanna, if standing with one foot in the stirrup and one foot on the ground, wouldn’t pull himself up on that car by catching hold of the top end of the car. He would only take hold of the top of the car to steady himself while he was walking along the end sill. They can’t reach the top edge of the car from the ground. They have to get hold of the handhold to start with."

And Scruggs, a conductor who had served an apprenticeship as brakeman, testified:

"Q. Now, assuming that a brakeman is desirous of setting a brake on a car, and he is on the ground, or one foot is on the ground and one foot is in the stirrup, what method would he use in getting to that brake there?

A. Well, sir-

"Q. Loaded with coal, now.

A. In my experience he would use his grabiron to get up to the end sill, and then he would walk across to the brake on the end sill, and steadying himself across by the top of the car.

"Q. Steadying himself by the top of the car?

A. Yes; that is the way I have done myself."

All the witnesses who testified on the subject concurred in saying that the only purpose for which a brakeman customarily used the top of a coal car in the performance of his duties was to hold to it for the purpose of steadying himself in walking across on the sill at the end of the car. After repeated efforts, and by the use of leading questions, plaintiff’s counsel succeeded in getting two or three witnesses to say that a brakeman in Wilson’s situation, standing in the stirrup of the ladder on the side of the car, could not see the grabiron on the end, unless he leaned out and around the corner of the car, and that that was not regarded as safe. But no witness testified that he had ever seen a brakeman spring up on the end of a car as Wilson attempted to do.

The car from which Wilson fell was a foreign car. It has been received by defendant as a connecting carrier at Bismarck to be hauled from thence to its destination at Leadanna, a distance of about 30 miles. The date on which the car was received by defendant was not shown; but it does appear that at that time it had two car inspectors regularly employed in its yards at Bismarck. Bowden was defendant’s car inspector at Poplar Bluff. He had had about 20 years’ experience in inspecting cars. Defendant sent him to inspect the car involved in the catastrophe which caused Wilson’s death the day...