Wilson v. Mo. Pac. Railroad Co.

• Decision Date: 03 March 1928
• Docket Number: No. 26762.,26762.
• Citation: 5 S.W.2d 19
• Parties: BERTHA WILSON, Administratrix of Estate of LUTHER C. WILSON, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

5 S.W.2d 19

BERTHA WILSON, Administratrix of Estate of LUTHER C. WILSON, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 26762.

Supreme Court of Missouri, Division One.

March 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED.

James F. Green, John B. Cole and Thomas J. Cole for appellant.

(1) In order to establish liability of the defendant in this action it is necessary that the record show injury resulting in whole or in part from the negligence of an officer, agent or employee of defendant, or by reason of a defect due to defendant's negligence in the car upon which Luther C. Wilson was riding just preceding his injury. These necessary facts this record does not show. Therefore, defendant's demurrer to the evidence should have been sustained. (2) No act of negligence by any officer, agent or servant of defendant having been shown, plaintiff on the trial attempted to prove that defendant "knew, or by the exercise of ordinary care could have known of the alleged defective condition of said car, in time by the exercise of ordinary care to have remedied the same." This attempt resulted, in a total failure of proof. Seaboard A.L. Ry. Co. v. Horton, 233 U.S. 492. (3) The proximate cause of the injury and death of Luther C. Wilson under the facts in this case was his voluntary, uncalled-for and grossly negligent act in springing up from a safe place in contact with the ground and thereby throwing his body in front of and his right hand over the top of a moving car. Great Northern Ry. Co. v. Wiles, 240 U.S. 448; Lang v. Railroad Co., 255 U.S. 455; Frese v. C.B. & Q. Ry., 263 U.S. 1; Davis v. Kennedy, 266 U.S. 147; Virginian Ry. Co. v. Linkous, 230 Fed. 93; Yoakum v. Lusk, 223 S.W. 53; Meyers v. Ry. Co., 259 S.W. 1027; St. L.I.M. Ry. Co. v. McWhirter, 229 U.S. 280. Where a claim by an employee in interstate commerce does not grow out of the Federal Safety Statutes, the doctrine of assumption of risk applies. Seaboard Air Line v. Horton, 233 U.S. 492; Truesdell v. Railroad Co., 169 S.W. 471; Neth v. Delano, 194 Mo. App. 652; Schweig v. Railroad Co., 216 Fed. 750.

Charles P. Noell for respondent; Glen Mohler of counsel.

(1) There was sufficient testimony for the jury to find that appellant owed deceased a duty not to use and haul the freight car with the defective end board, and that the defendants could have known the defects which caused the death of deceased. Gordon v. K.C. So. Ry. Co., 222 Mo. 516; Fort Worth Railroad Co. v. Day, 118 S.W. 739; Galveston Railroad Co. v. Moses, 184 S.W. 327; Prosser v. Mont. Cent. Railroad Co., 17 Mont. 372; Cootes v. B. & M. Ry. Co., 153 Mass. 297; Dunn v. Railroad Co., 107 Fed. 666. (2) The evidence showed that Luther C. Wilson was performing his duty in the usual and customary manner of brakemen in climbing across the end of the car to set the brakes and it cannot be said that in so doing he was guilty of negligence, much less can it be said that he was guilty of negligence which was the sole proximate cause of his injuries. Gordon v. Southern Ry. Co., 222 Mo. 516; Brunke v. Telephone Co., 115 Mo. App. 36; Wilson v. Ry. Co., 296 S.W. 1017. (3) The defect in the end board were not ordinary risks and hazards of the business, nor can it be said from the evidence that Wilson knew of these facts or that they were plainly observable to him in the performance of his duties and hence it cannot be said that Wilson assumed the risk as a matter of law. Seaboard Air Line v. Horton, 233 U.S. 492; Choctaw v. McDade, 191 U.S. 64. (4) There was no error in admitting the testimony that the end board was split since such testimony is properly admissible under the allegations in the petition that "the top timber or board at the end of the said car was not securely and properly bolted to the said car and was old, worn, weak, loose, and defective." (5) The court did not err in admitting testimony as to Wilson's duties under the custom of the brakemen to take hold of the end board in "getting around the corner of the car" or in describing what the witness had observed as to Wilson's duties in testifying "they (the brakes) had to be set." Wolff v. Scullin Steel Co., 217 S.W. 571; Green v. Railroad, 142 Mo. App. 80; Standley v. Railroad Co., 121 Mo. App. 537; Ellis v. St. Ry. Co., 234 Mo. 657.

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 four feet. The coal came fully up to the top on all sides. On the east side, ten or twelve inches back from the north end, there was a ladder consisting of three hand-holds or grab-irons and a stirrup. The grab-irons were placed at equal distances apart, the top one being four 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 grab-irons corresponding to those on the side, the top one being likewise four 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 grab-iron 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, twelve inches wide, two inches thick and extending across the entire width of the car. The ends were bolted to uprights. Wilson weighed about two hundred pounds. When he sprang up and grasped the board it split, and a strip off the top edge approximately three 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 eighteen 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 thirty minutes, the splintered portion would probably have not pulled loose.

It is inferable from Wilson's actions and the attending circumstances that he climbled 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 hand-holds, 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...