Winslow v. Missouri, K. & T. Ry. Co.

• Decision Date: 01 October 1916
• Docket Number: No. 12275.,12275.
• Citation: 192 S.W. 121
• Court: Missouri Court of Appeals
• Parties: WINSLOW v. MISSOURI, K. & T. RY. CO.

192 S.W. 121

WINSLOW v. MISSOURI, K. & T. RY. CO.

No. 12275.

Kansas City Court of Appeals. Missouri.

October 1, 1916.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by D. R. Winslow against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.

J. W. Jamison, of St. Louis, and Hadley, Cooper, Neel & Wright, of Kansas City, for appellant. Dudley W. Eaton, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff was head brakeman on defendant's local freight that regularly ran between Parsons, Kan., and Muskogee, Okl. One of his duties required him, whenever the train stopped long enough en route, and especially when waiting on sidings for other trains, to go along his train inspecting the same and to see that the doors of all closed cars were kept closed.

At the station called Russell Creek (where there was a box car for a depot, but no agent, and where very little business was transacted), was a passing track or siding in the neighborhood of 2,800 feet in length. Plaintiff's train entered upon this siding and pulled down on it till the engine was within three or four car lengths of the other end and stopped. This was to allow a passenger train to come in on the siding behind plaintiff's train, where both would wait to allow a third train coming from the other direction to meet and pass them.

Further up the road plaintiff had noticed that the door of one of the cars (about the fifth, sixth, or seventh back from the engine) was open, but he had no time in which to close it. While the train was waiting on the siding at Russell Creek station plaintiff got off his engine on the right-hand side — that is, on the side away from the main track — and started back inspecting the boxing and running gear of the cars. He remembered the open door on the other side of the train, and, after passing the car, crossed over or through the train and walked along the other side till he came to the open door. He tried to close it from the ground, but was unable to do so. He thereupon climbed up into the car and found that a part of the contents of the car, some machinery, was against the door and keeping it from being closed. He was unable to remove the obstruction, and thereupon got out of the car by stooping down and placing his hand upon the doorsill and jumping to the ground. In doing so he injured or resprained his left ankle, which he had sprained 6 months before so badly that he was laid up for 42 days as the result of said first sprain. He brought this suit under the federal Employers' Liability Act to recover damages for said second sprain, alleging that his left foot went into a hole or gully whereby his left ankle and the ligaments and tendons thereof were torn, lacerated, and bruised. The petition alleged that the defendant had carelessly and negligently caused and permitted gullies and washed-out places to exist in the ground between the siding and the main track, and that defendant had carelessly and negligently permitted the hole or gully into which plaintiff jumped to exist near the ends of the ties of said passing track, and that said gully or depression was concealed by weeds and heavy grass which defendant had carelessly and negligently permitted to grow at that place and which defendant had carelessly and negligently cut and permitted to lie on the ground in such manner as to hide said washout or gully. Plaintiff recovered judgment for $3,500, and defendant appealed.

Although the siding was 2,800 feet long and was where little business was done, yet, if plaintiff's train regularly stopped there, and it was his duty to walk alongside to inspect the train, it would be defendant's duty to exercise reasonable care to keep the ground at such place in reasonably safe condition. If the hole were such as to cause a brakeman while walking on the ground to fall and get hurt, defendant would clearly be liable if it knew or might have known of the defect in time to have repaired it.

And since plaintiff's duty was to close all doors found open when at such siding, it would be within the range of defendant's reasonable foresight that brakemen would have to get up into cars and would jump therefrom especially as no other means of getting out of cars were provided. The fact that the siding was of such great length would not relieve the defendant of the obligation to use reasonable care to keep its entire length reasonably safe, since a train, as shown by the evidence in this case, is likely to stop at any part of said siding. We are therefore wholly without warrant in holding, as a matter of law, that plaintiff is not entitled to recover.

It is a question for the jury to say whether the hole complained of was such as to render the working place dangerous and not reasonably safe, and whether defendant was negligent.

While the petition contains no allegation stating, in so many words, that defendant had actual knowledge of the alleged hole, or that it had existed for a time long enough before the accident to give defendant constructive notice thereof and afford defendant sufficient time to have repaired the place before the injury, nevertheless, when the full scope and legal effect of all the allegations of the petition are considered, we do not think it is open to the complaint made against it by defendant. So far as concerns the time necessary to repair the place, only a few moments would be required to fill a hole which plaintiff says was about a foot wide at the top with sides sloping to the bottom and only 8 to 12 inches deep. As to the necessary allegation with respect to actual or constructive knowledge of the existence of the hole, the petition says the defendant "caused and permitted" the hole to exist, and negligently cut the weeds and grass and permitted the same to fall over and lie upon the hole so as to conceal the same. Of course, if defendant "caused" the hole to exist, that is, created the hole, then it had actual knowledge thereof. And so also if it permitted the hole to remain and negligently cut weeds and allowed them to fall and lie thereon so as to conceal it. "Permit" means to allow by tacit consent; to grant leave to by express consent or authorization; to authorize. "Permit" is not synonymous with "allow" and "suffer." It is a much more positive term denoting "a decided assent." City of Chicago v. Stearns, 105 Ill. 554, 558. It is perhaps sometimes used synonymously with "suffer" under certain circumstances, but ordinarily it implies knowledge and consent and means to grant leave; to tolerate; to empower; to license. Gregory v. Marks, 10 Fed. Cas. 1194. And in the connection with which it is used in the petition it cannot be regarded as used in the sense of "allow" or "suffer." Coon v. Froment, 25 App. Div. 250, 49 N. Y. Supp. 305, 306. The whole context in which the word is used shows that the defendant is charged with actual knowledge.

Besides, no attack was made upon the petition in any way before verdict. Unless the petition failed to state any cause of action whatever, it is not open to assault now.

The question as to whether the evidence shows actual or constructive knowledge on the part of defendant is another matter. Plaintiff is the only one who testified to any hole. No mention or complaint of a hole was made by him at the time of the accident, and none of the trainmen saw any hole, though they walked over the place immediately after plaintiff was...