Woosley v. Wabash Ry. Co.

• Decision Date: 07 July 1925
• Docket Number: No. 18849.,18849.
• Citation: 274 S.W. 871
• Parties: WOOSLEY v. WABASH BY. CO.
• Court: Missouri Court of Appeals

274 S.W. 871

WOOSLEY v. WABASH BY. CO.

No. 18849.

St. Louis Court of Appeals. Missouri.

July 7, 1925.

Rehearing Denied July 21, 1925.

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

"Not to be officially published."

Action by John W. Woosley against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. H. Miller and Homer Hall, both of St. Louis, for appellant.

L G. Peery and Carter, Nortoni & Jones, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant. From a verdict and judgment in favor of plaintiff in the sum of M, defendant has appealed.

While riding upon a motorcar of defendant's in the course of his employment, plaintiff's left foot was caught and crushed between the wheel of the motorcar and a heavy plank in the railroad crossing at Second and De Sota streets in the city of St. Louis.

The assignments of negligence in plaintiff's amended petition relied on for recovery are, in substance: (1) Negligently failing to hew, slope, and taper said crossing plank, so that it would be on a level with the planks alongside which it was placed; (2) negligently permitting the end of said plank to become loose, so that it projected 4 or more inches above the planks, tracks, and surface of the street; and (3) negligently ordering plaintiff to ride upon said car and push a hand car ahead of the motorcar with his foot, which position was unsafe and dangerous.

Defendant's answer denied plaintiff's allegations, and, in addition, contained pleas of contributory negligence and assumption of risk.

The reply was conventional.

The essential facts disclosed by the evidence are as follows:

Plaintiff was a section man in the employ of defendant, and was a member of a crew of 6 or 8 men under the supervision of a foreman, Charles English, who gave the men under him their orders. The particular crew with which he worked had charge of a portion of defendant's tracks, about 2½ miles in length, located within the city of St. Louis. Plaintiff had worked over this stretch of track continuously for the 18 months that he had been in defendant's employ, doing general track work and putting in ties and rails.

The crew was equipped with two cars, a gasoline motorcar and a push car. The platform of the motorcar was 7 or 8 feet in width and of about the same length. Boards S or 10 inches wide and 8 inches above the floor extended lengthwise of the car over the wheels on either side. Upon these the men sometimes sat. A boxlike structure 2 feet high and 2 feet wide, covering the motor, extended through the center of the platform, upon which section foreman, English, sat and operated the car.

The push car, upon which the tools were carried, was 2 or 3 inches lower than the motorcar, but otherwise was of practically the same dimensions. In going out over the road to work, the push car was attached behind the motorcar with a chain or a wire and pulled, but in returning the crew sometimes pushed the push car in front. English, the foreman, had ordered them in so doing to keep the cars separated, and generally, to accomplish this, one of the crew sat near the front of the motorcar holding his foot against the push car. The crew had been equipped with this car for 8 or 10 months before the date of plaintiff's injury, and during that time English had always been present when it was being pushed in this manner.

Plaintiff was injured May 26, 1921, between 9 and 10 o'clock in the morning, at the point where defendant's tracks cross De Soto street in the city of St. Louis. There were two main line tracks, an inbound and an outbound track, over this crossing as well as a switch track on the east side of the outbound track. At this crossing, planks 4 inches thick, 8 or 10 inches wide, and about 16 feet in length were spiked to the ties parallel with the rails so as to fill the space between the rails and make the level of the street and rails the same. There was one plank east of the side track. The ends of all the planks, with the exception of the one on the outside of the east rail of the side track, were beveled off at an angle from top to bottom. The purpose of so beveling them was to keep brake beams from catching on them, or any one from stumbling over them, and to make the roadbed safer. However, the north end of the plank east of the switch track, instead of having been tapered down, was left with a 4-inch square face, and no dirt or cinders had been piled against it. A few days before plaintiff was injured, the planks in this crossing which had been in place for several months, were torn up by the crew, under the orders of English, to repair a leak in the water pipes underneath the track, being replaced, however, upon the completion of the work in their original positions.

On the day of the accident the section crew had gone to the De Soto street crossing to do some repair work on the inbound track just north of the crossing. Going out the push car was pulled in the rear of the motorcar. The cars were run on the side track, and left 30 feet or more north of the crossing. When the work at that point was finished, the crew started to move the cars south, the push car in front, to the switch south of the crossing where the cars could be run onto the main line track and taken farther north for work. The push car was loaded with shovels, picks, claw bars, spike mauls, and spikes.

In order to start the gasoline motor it was necessary for some of the men to push it along the track until the engine started. Plaintiff helped push from the east side for about 10 feet, and then got upon it after the engine started. He sat down upon the seat plank on the east side, 2 feet from the south end, with his right leg extended out in front of him and against the push car. His left leg extended off of the motorcar and was swinging down loose. There was a distance of about 1 foot between the push car and the motorcar. While plaintiff was riding in this position his left foot struck against the square end of the plank outside the east rail of the side track, and was crushed between the end of the plank and the left front wheel of the motorcar.

It was admitted at the trial of the case that defendant was engaged in interstate commerce, and that the portion of the track upon which plaintiff was injured was used in interstate commerce.

At the close of all the evidence defendant unsuccessfully demurred. The court withdrew from the jury plaintiff's assignments No's 2 and 3, permitting him to go to the jury upon No. 1 by an appropriate instruction.

Respondent contends that there is nothing before this court for review save the record proper, for the reason that the bill of exceptions was not filed in the circuit court at a time before the appellant was required by rule 12 of this court to serve his abstract of the record. However, this contention is without merit.

Section 1460, R. S. 1919, provides, in substance, that the bill of exceptions shall be filed at any time before the appellant is required by the rules of the appellate court to serve his abstract of the record. As far as our record discloses, that was done in this case. At any rate, whatever doubt might have existed was dispelled by the order of this court, acting upon a stipulation signed by counsel for both appellant and respondent, resetting this case for hearing at a date two months later than the first setting, the latter date being the one from which the time for serving the abstract of the record was to be determined.

The first point raised by appellant is that plaintiff's petition does not state a cause of action. We hold, however, that the petition is sufficient, especially after verdict and in the absence of an attack having been made upon it by demurrer or a motion to make more definite and certain at the trial of the case.

This suit was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Was plaintiff, when injured, engaged in interstate commerce or in work so closely related to it as to be practically a part of it? As is frequent in this type of lawsuits, this case is not without its difficulties.

Plaintiff, in the regular course of his employment, had been engaged in repairing a track admittedly used in interstate commerce. This task having been concluded, he was assisting in moving the section...