York v. St. Louis-San Francisco Ry. Co.

• Decision Date: 24 June 1933
• Docket Number: 29731
• Citation: 62 S.W.2d 475,333 Mo. 105
• Parties: Pearl York, Administratrix of the Estate of George York, v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

62 S.W.2d 475

333 Mo. 105

Pearl York, Administratrix of the Estate of George York, v. St. Louis-San Francisco Railway Company, Appellant

No. 29731

Supreme Court of Missouri

June 24, 1933

Respondent's Motion for Rehearing Overruled April 20 1933, Respondent's Motion to Transfer to Banc Overruled June 24, 1933.

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge Opinion filed at October Term, 1932, March 3, 1933; motion for rehearing filed; motion overruled April 20, 1933; motion to transfer to Court en Banc filed; motion overruled at May Term, June 24, 1933.

Reversed.

E. T. Miller and Phil M. Donnelly for appellant.

Sizer & Gardner for respondent.

(1) Defendant was guilty of negligence in permitting the switch stand to remain unlighted in the path along the lead where plaintiff was required to work. Charleston v. Railroad, 200 Mo. 413; Ford v. Ry. Co., 280 Mo. 223; Ford v. Dickinson, 217 S.W. 300; Westover v. Wabash, 6 S.W.2d 847; Doyle v. Merchants Bridge & Terminal Co., 31 S.W.2d 1013; B. & O. v. Flechtner, 300 F. 318; Johnson v. Bolt & Nut Co., 172 Mo.App. 214; Cross v. Railroad, 177 S.W. 1127. (2) The risk to which plaintiff was exposed was not one ordinarily incident to his employment; it arose out of the negligence of the master and consequently was an extraordinary risk. While in a general way plaintiff knew of the location of this switch stand, yet he did not know its exact location and having approached the same in the dark did not appreciate the danger incident thereto and, hence, cannot be held, as a matter of law, to have assumed the risk. Oglesby v. Railroad, 1 S.W.2d 178; McIntyre v. Railroad, 286 Mo. 234; Westover v. Wabash, 6 S.W.2d 848; Locke v. Railroad, 281 Mo. 532; Doyle v. Merchants Bridge & Terminal Co., 31 S.W.2d 1010; Cross v. B. & O., 177 S.W. 1126. (3) An employee cannot be held to have assumed an extraordinary risk unless it conclusively appears that he not only knew of the defect but appreciated the danger arising from breach of duty, and the burden is upon defendant to establish that fact. O'Donnell v. Railroad, 26 S.W.2d 934; Oglesby v. Railroad, 318 Mo. 93; Weber v. Ry. Association, 20 S.W.2d 605. (4) The act of plaintiff in stumbling over the switch stand if blameworthy at all, constitutes contributory negligence rather than assumption of risk. Cross v. B. & O., 177 S.W. 1126; Railroad v. Cochran, 22 F.2d 22.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

This case comes to the writer on reassignment. George York, now deceased, filed this suit against appellant to recover damages for personal injuries alleged to have been sustained by him on the 16th of March, 1928. He received a verdict and judgment in the sum of $ 12,000. Defendant appealed. York later died and the cause was revived in the name of respondent, the administratrix of his estate.

This action was brought under the provisions of the Federal Employers' Liability Act. York was a switchman employed by appellant in the Nineteenth Street Yards at Kansas City, Missouri. He worked nights in the capacity of what is known as a field switchman. At the time of his injury he was in the act of switching cars carrying interstate shipments. The Nineteenth Street Yards are made up of various tracks, switch stands and other equipment for the purpose of making up and breaking up trains.

The tracks in the immediate vicinity where York received his injuries consisted of main line tracks, two lead tracks that branched off the main line and a number of stub tracks connected with the lead tracks. Stub tracks numbers 30 to 36 inclusive connected with what was known as the new yard lead. This lead branched off the main line and extended in a northerly direction and the stub tracks 30 to 36 were located east of this lead and connected therewith. Immediately west of the new yard lead was track number 40, known as the ice dock lead. Stub tracks numbers 37, 38 and 40 were connected with and were located west of the ice dock lead. The switch stands controlling the various switches were located in the space between the two yard lead tracks. There is a sufficient decline so that cars, when shunted off the main line onto the lead tracks, will roll down the lead tracks onto the stub tracks.

On the night in question a train crew, with which York was working, was in the process of breaking up a freight train. York's duties were to line up the switches and set them for the stub tracks so as to permit cars to pass onto the tracks for which they were destined. Several switches had been made when a car was shunted onto the new yard lead track intended for stub track number 33. York, after ascertaining the track for which the car was intended, looked down the lead and noted that all switches were properly lined and then proceeded down the space between the two lead tracks toward the switch stand that controlled stub track number 33, for the purpose of opening the switch and letting the car pass onto track number 33. York testified that the car was approaching rapidly and he began to run, cocking his head towards his right shoulder in order that he might hear whether or not the car was gaining on him. As he was thus running he stumbled over the switch stand at track number 40, located between switch stands for tracks numbers 32 and 33. York fell with his feet toward the rail and the car passed over his left foot, mashing off the lower part thereof.

The petition charges that defendant was negligent in not maintaining lights on switch stands numbers 33 and 40. The answer of defendant specifically pleaded that the danger of plaintiff stumbling over switch stands was one of the risks incident to the employment and was assumed by plaintiff. It is also pleaded in the answer that the hazard was open, obvious, known and appreciated by plaintiff and therefore, plaintiff assumed the risk and was not entitled to recover for the injuries complained of.

At the close of all of the evidence defendant offered appropriate instructions in the nature of demurrers to the evidence on the theory that, under the evidence, plaintiff, as a matter of law, assumed the risk. The trial court refused to give these instructions. Plaintiff's instructions submitted the case to the jury on common-law negligence. Appellant assigns error on the part of the trial court in failing to sustain a demurer to the evidence.

It is rightly conceded by appellant and respondent that this case must be governed by the decisions of the Federal Courts. [45 U.S.C.A. sec. 51, note 16. Hoch v. St. Louis-San Francisco Ry. Co., 287 S.W. 1047, 315 Mo. 1199.]

The rule of assumption of risk is well stated in Gila Valley Ry. Co. v. Hall, 232 U.S. l. c. 102, as follows:

"In order to charge an employee with the assumption of a risk attributable to a defect due to the employer's negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances, would have appreciated it."

Assuming then (without so deciding) that defendant was negligent in not maintaining lights on switch stands numbers 33 and 40 did York assume the risk of being injured in a manner as disclosed by the evidence? In determining this question we must view the evidence in its most favorable light to York. York was a switchman of many years' experience. He had been on night duty in the yard in the condition it was at the time of the injury for at least three years. During this time he had occasion to switch cars at the place he was injured three or four nights a week. The switch stands, beginning with number 32 north including 33 and 40 here in question, had never been equipped with lights. York testified that he knew this; that defendant had made some changes in the lights from time to time but that he had never seen a light on a switch stand north of track number 32. He further testified...