Wiser v. Missouri Pac. R. Co., 45705

Citation301 S.W.2d 37
Decision Date08 April 1957
Docket NumberNo. 45705,No. 2,45705,2
PartiesO. W. WISER, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant
CourtUnited States State Supreme Court of Missouri

Harold L. Harvey, St. Louis, Hilary A. Bush, Fred A. Murdock, Johnson, Lucas, Bush & Gibson, Kansas City, for appellant.

Gardner & Gardner, Monett, for respondent.

EAGER, Presiding Judge.

This is a suit for personal injuries instituted under the Federal Employers' Liability Act. 45 U.S.C.A., Ch. 2, Sec. 51 et seq. The verdict and judgment were for plaintiff in the amount of $10,000; no motion for new trial was filed, but defendant did file, and the court overruled, a motion for judgment in accordance with its motion for a directed verdict. The present appeal is from that ruling and the sole question presented is whether plaintiff made a submissible case. This being true, we must necessarily consider the evidence from the standpoint favorable to plaintiff. Malone v. Gardner, 362 Mo. 569, 242 S.W.2d 516, 520.

Plaintiff was a conductor in the employ of defendant, and had been an employee for approximately 35 years. At the time in question he was the conductor on a freight run from Pleasant Hill, Missouri, to Ft. Scott, Kansas. The crew consisted of the engineer, the fireman, the conductor, a 'head brakeman,' and a 'rear brakeman'; the latter rode in the caboose with the conductor. This particular train left Pleasant Hill at 3:55 A.M. on June 7, 1955; it consisted of 54 cars, a diesel locomotive and the caboose. Some of the cars were 'bad order' cars, bound for the shops at Wichita. At least one of these was a car located about 12 or 15 cars from the caboose from which the right door had been torn off; this door had been laid flat inside the car, on the floor. The train had orders to take a switch, more specifically the 'passing track,' at Ovid, Missouri, to let a north-bound train pass. It reached Ovid about 5:10 A.M., well after daylight, and proceeded on to the passing track, which was sufficiently long to accommodate the train. That track was located easterly from the main line, or on the left as one proceeded south. As shown in the evidence, and conceded in defendant's brief, the rules of defendant required the crew to inspect a train at every opportunity on the road, including stops, by walking along each side and looking for hot boxes, 'brake rigging down,' or any other observable defects. When this train stopped on the passing track, plaintiff alighted and started up the right side of the train southward on such an inspection; he was thus between the passing track and the main line. Considerable was said about the duties of the rear brakeman and what he was doing, but we regard this as wholly immaterial; clearly, plaintiff was performing one of his proper and required functions.

At this point it becomes necessary to describe the track and right of way more particularly. In so doing we use both the evidence and several photographic exhibits. The main line was somewhat higher than the passing track, and the two tracks were parallel. The rock ballast on the main line was coarser or larger than that on the passing track; it was described as 'B' ballast, and, as plaintiff said, the rocks were perhaps the size of hickory nuts. On the passing track the ballast was 'chat' or fine gravel, said to be from the mines around Webb City. The two kinds of ballast met in a more or less straight line between the tracks; from the photos it would seem that this meeting place was nearer to the passing track, and that there was perhaps less than two feet of chat ballast beyond the ends of the ties of the passing track. The evidence was that the chat ballast was rather 'firm' to walk on, more so than the larger ballast on the main line. This chat beyond the end of the ties of the passing track constituted a sort of walkway for the making of such inspections and perhaps for other purposes.

On this particular morning when plaintiff reached the car with the door off, referred to previously, he noticed that the corner of the loose door was sticking out of the car about 30 inches toward the main track. He testified that it was his duty to try to put it back and get it out of the way, and that he had no time to get assistance. He further testified: that he took hold of the protruding corner of the door with both hands, raised it up and 'made a shove'; that just as he 'was in the shove,' his right foot 'rolled' on him--he felt something under his foot, his foot did not slip, but nevertheless his foot went out from under him, and he went down on his knees 'in a twist'; as he expressed it, his footing 'gave way'; he immediately felt a pain like a ball of fire across his lower back and down his leg. He also caught his hand under the corner of the door and it was mashed and cut. He further testified that after he fell he looked at the ground where he had been standing and saw a hole in the chat ballast about 2 or 2 1/2 inches deep and 3 or 3 1/2 inches across, 'right in the pathway where I was walking,' and where he had been standing when making the shove; that he also saw, about a foot or a foot and a half away from the hole, a 'boulder,' of 'slate-like' form, real hard, about 4 or 4 1/2 inches in diameter, and somewhat round. He further said, referring to his fall and particularly to the rock, that: 'I'd say it just rolled.' He also said that he had not seen this rock prior to his fall, and that it was unusual to see 'rocks' where you walk. After this incident he proceeded on to the engine, tried to find a first-aid kit for his hand, without success, and returned to the caboose where he wrapped up his hand as best he could and finished the trip. Much was made at the trial of plaintiff's failure to complain of his back for a substantial time, but we are in nowise concerned with that here. Our concern here is with the 'boulder' (a term not conceived by us, but used and apparently insisted upon by plaintiff's counsel at the trial and here), the circumstances surrounding its presence at that spot, and whether its presence constituted negligence. No witness except plaintiff had ever seen it, and he only during the fleeting moments described.

The evidence is not clear as to how this rock (as we shall usually call it) came to be there. Plaintiff's counsel say that the plaintiff testified that such slag rocks were deposited at that point as ballast several years previously. We do not so read the evidence. What he did say was that he helped on a work train 'several' years previously which hauled similar 'slag rock' to the 'Marmaton Bottoms' on the main line, about half a mile away, and that they unloaded it there as a heavy ballast for flood protection; that often the empty cars were spotted on this passing track at Ovid; that this type of rock came from the mines around Webb City and that the pieces varied greatly in size. There appears some very confusing testimony from plaintiff concerning placing slag rock 'there'; reading his testimony as a whole, we construe this as referring to the placing of the ballast in the 'bottoms'; at one place he said distinctly that he did not know that this 'slag rock was right there at this particular place'; and the other testimony is too vague to constitute a contradiction. Plaintiff did testify, however, that he had seen ties removed on the passing track, which work necessitated pulling the spickes, digging out some of the ballast, and pulling the ties; that, as he recalled, this had exposed some 'slag boulders' on the outside or east side of the passing track, along the right of way; then, to a very leading question: 'In the walkway?' the answer was 'Yes, sir.'

The scene of this accident was 48 miles from Pleasant Hill and actually far removed from any town or railroad yards. Plaintiff's contention was and is that he suffered a ruptured intervertebral disc, had not worked since, and that his injuries are permanent. It is not necessary to consider either the extent of his injuries, his treatment, the medical testimony, or the evidence concerning plaintiff's earnings. Plaintiff testified, in substance, that in making this inspection his view was concentrated on the cars, but that he glanced down at the ground from time to time. The question of contributory negligence was clearly an element in the case, but that was submitted to the jury and it is not now for our consideration, this being a Federal Employers' Liability Act case. In passing, we may say that there might be some question as to whether or not the overhang of this car and the 30-inch extension of the car door from it, would have placed plaintiff's feet and body west of and out of the chat walkway when he was in a position to 'shove.' However, his testimony is to the contrary, and we do not consider that physical facts are sufficiently shown to enable us to reject his testimony. Several grounds of negligence were alleged in the petition, but the case was submitted to the jury solely on defendant's alleged negligence in causing, permitting and allowing 'a loose boulder' to be and remain in the pathway, when defendant could reasonably have anticipated that someone might be injured thereby, and in thereby rendering plaintiff's place of work not reasonably safe.

We find it unnecessary to consider any of defendant's evidence, except in one or two particulars to be noted. In part, it concerned the nature, manner and regularity of inspections of the tracks and right of way, the construction of the tracks, the making of an inspection at the scene after the injury, and the absence of rocks or 'boulders.' At the close of plaintiff's evidence and again at the close of all the evidence, defendant offered its motions for a directed verdict; both were overruled. Defendant's present point on the sufficiency of the evidence was adequately preserved.

Passing to the merits of the controversy, we are confronted with two more or less preliminary questions, as follows: (a)...

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    ...and while so doing we necessarily consider the evidence from the standpoint most favorable to the plaintiff. Wiser v. Missouri Pacific Railroad Company, Mo., 301 S.W.2d 37, 38. Consideration of the same must be in light of the law which was summarized clearly in Louisville & N.R. Co. v. Bot......
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