Summary
In Luthy v. Terminal R. Ass'n of St. Louis, Mo.Sup., 243 S.W.2d 332, there was no light at plaintiff's place of work, and plaintiff working in the dark fell over a black switch mechanism when attempting to board a car.
Summary of this case from Rogers v. ThompsonOpinion
No. 42514.
November 12, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DAVID A. McMULLAN, J.
Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.
Mark D. Eagleton, Wm. H. Allen, Rene J. Lusser, and Arthur J. J. Bohn, St. Louis, for respondent Walter N. Luthy.
This is an appeal by the Terminal Railroad Association of St. Louis, a corporation, from a judgment for $15,000 in favor of Walter N. Luthy in an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for personal injuries.
Respondent's theory was that appellant was negligent in failing to furnish him a reasonably safe place to work at night. The only issue presented is that respondent did not make a prima facie case, appellant contending respondent had the burden of establishing that he was injured at his place of work; that it was unlighted; that appellant violated a duty to light its switchyard at that exact point; and that the direct result of its failure to do so caused respondent's injury.
Respondent was foreman of one of appellant's switching crews, and was severely injured when he tripped over appellant's first switch operating mechanism west of the Missouri Pacific Railroad Company's "shanty" alongside track 58 in appellant's yards in St. Louis about 11:50 p. m. on the night of July 10, 1949, as he was in the act of boarding the rear car of a switching movement.
Many tracks and switch operating mechanisms are in appellant's yards. Track 58 extends east and west. The Missouri Pacific shanty is 7 feet, 5 inches south of track 58. Switch operating mechanisms are above ground, and respondent estimated the one involved to be 120, over 100, feet west of the shanty, but an engineer gave the distance as 87 feet, 6 inches. It is south of track 58, with the north edge of its air cylinder 15 inches south of the south edge 29 inches south of the rail. A short piece of hose or pipe, perhaps 12 inches or so in length, connects the cylinder with an electric air valve, having a housing 9 inches high. The south edge of this housing is 4 feet, 1 inch south of the south rail. Running practically parallel with and 6 feet, 4 inches south of said rail is a 2-inch compressed air pipe, 9 inches above the ground, supported on pedestals. Freight cars overhang the rails approximately 2 feet, 6 inches.
The hours of duty of the switching crew were from 4 p. m. until midnight. Respondent had received instructions to deliver six Missouri Pacific cars from behind Tower No. 1, immediately south of Union Station near 18th street, to the Missouri Pacific at 23rd street. The engine was headed west, and its first movement was to the east. Respondent's duties required him to give the waybills to the Missouri Pacific yardmaster or deposit them in a metal box at the shanty and receive instruction from said yardmaster on what track to deliver the cars. He alighted from the engine about 50 feet west of the shanty to do this and his two helpers continued on east to secure the six cars and return. The Missouri Pacific yardmaster was not at the shanty. Respondent experienced difficulty in locating him, but eventually did so and received the instructions. Next, respondent had to inform his crew, and this required his boarding the train as it returned west with the cars. By the time respondent secured the instructions from the yardmaster, the engine, pulling the cars westwardly on track 58 at about 5 miles an hour, was passing respondent, who was then just east of the shanty.
It was respondent's intention to board the ladder at the southeast corner of the last or east car. He started to walk west, passing to the south of the shanty. He found rubbish had been placed west of the shanty for a distance of about 50 feet and continued to walk westwardly to clear the debris without climbing over it. He then turned north, stepping over the compressed air pipe, and made ready to board the ladder of the east car, which car he was then facing. He knew the switch operating mechanism was in the vicinity but thought it was approximately 60 feet west of him.
Respondent testified it was dark in the vicinity and there was no illumination other than the light from his switchman's lantern. This was an electric dry battery lantern with two small electric light bulbs, and it would show only a few feet, 5 or a little more, ahead when turned sideways. Its more frequent use was for other purposes.
As was customary when intending to seize a grab iron and put a foot in the stirrup of the ladder on the side of a car, respondent looked ahead but saw no obstacle in his way, changed the lantern from his right to his left arm that he might seize the grab iron with his right, started to run westwardly to equalize his speed with that of the moving cars, running sideways, and looking backwards to observe the approaching grab iron in order to take hold of it and pull himself onto the stirrup of the ladder. After running in this manner for about 20 feet and just as he reached for the grab iron but before he touched it, respondent tripped over the air valve housing or the hose or pipe leading from it to the air cylinder of the switch operating mechanism, and was caused to fall.
The only evidence offered by appellant were two exhibits, photographs of the vicinity of the occurrence. Additional facts will be stated in the course of the opinion.
The parties agree that the Federal Employers' Liability Act applies and that respondent had the burden of establishing appellant's actionable negligence. Said Act, in so far as material here, makes a carrier liable in damages to any employee suffering injury "resulting in whole or in part from the negligence" of the carrier, "or by reason of any defect or insufficiency, due to its negligence, in its * * * appliances, machinery, track, roadbed * * * or other equipment." 45 U.S.C.A. § 51, 53 Stat. 1404. The employee's contributory negligence "shall not bar a recovery," but merely serves to diminish the damages. Id., § 53. And, since the amendment of August 11, 1939, employees do not assume any risk "resulting in whole or in part from the negligence" of the carrier. Id., § 54. The effect of the foregoing provisions may be found stated in the following, among other, cases. Tatum v. Gulf, M. O. R. Co., 359 Mo. 709, 223 S.W.2d 418, 422, 423; Joice v. Missouri-K. T. R. Co., 354 Mo. 439, 189 S.W.2d 568, 572[1-6], 161 A.L.R. 383; Mooney v. Terminal R. Ass'n, 352 Mo. 245, 176 S.W.2d 605, 609[5-6], Balley v. Central Vt. Ry. Co., 319 U.S. 350, 352-354, 63 S.Ct. 1062, 87 L.Ed. 1444; Ellis v. Union P. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572.
The Act now leaves for practical purposes only the question of whether the carrier was negligent and whether that negligence contributed in whole or in part as a proximate cause of the injury or death. The Mooney case, supra, quoting authority. It was considered in Terminal R. R. Ass'n of St. Louis v. Farris, 8 Cir., 69 F.2d 779, 784[2], that the running of trains in and about the Union Station in St. Louis is a complex business, dangerous to appellant's employees and others if not properly conducted, placing a duty upon appellant to adopt all reasonable measures to avoid subjecting its employees to unnecessary dangers. "The greater the hazard, the greater the care required." Woods v. Wabash R. Co., 188 Mo. 229, 244, 86 S.W. 1082, 1086. The Tatum case, quoting the Bailey case, supra.
Respondent was injured while discharging his duties as foreman of one of appellant's switching crews in appellant's yards. His duties took him over the place where he was injured. It may be that at the particular point respondent was injured the switchmen do not make or break up trains, or throw switches, or pass over the switches as frequently as in some of appellant's regular yards where they make and break up trains; but plaintiff gave affirmative testimony that at times said place was used the same as similar places in the regular yards, and that quite a bit of switching was done over the tracks involved. One ordinarily expects switching movements to be performed and switchmen to alight from and board cars in the vicinity of switch points in switch yards. We may not say as a matter of law that respondent was not at his place of work.
In Kenney v. Boston M. R. R., 92 N.H. 495, 33 A.2d 557, 560[1], stressed by appellant, the head brakeman of a train fell to his death on a dark night when a car the engine was pushing was stopped on the main track, for some unexplained reason, on a bridge several hundred feet from the train it was to be coupled onto. Under evidence that brakemen had occasion to alight on the main track only at the switches and station, the court held there was no evidence that defendant should have anticipated that deceased in the course of his duties would have occasion to alight at the bridge, considering the distance of the bridge from the switches involved. The facts distinguish the Kenney case from the instant case. Consult the Tatum case, supra.
Appellant says that if the "place of work" was so unsafe as to produce respondent's injury, he alone was responsible for he chose it rather than a point east of the shanty where there were no obstructions, and his own act was the sole direct cause of his injury. Appellant relies upon its exhibit A, a photograph taken about December 11, 1950, 17 months after respondent's injury. It does not establish that there were no obstructions there on July 10, 1949, the day respondent was injured. If respondent were negligent in attempting to board the car where he did, such negligence would not bar a recovery under the act if appellant were negligent "in whole or in part." Appellant takes too narrow a view of the Federal law, as whether respondent's negligence, if any, was the sole negligence requires a consideration of evidence, if any, bearing on appellant's negligence.
Appellant's cases, Atlantic Coast Line R. Co. v. Davis, 1929, 279 U.S. 34, 39, 49 S.Ct. 210, 73 L.Ed. 601, Hogan v. New York Central H. R. R. Co., 2 Cir., 1915, 223 F. 890, 895, and Deere v. Southern P. Co., 9 Cir., 1941, 123 F.2d 438, 440, 441 [6], were considered in connection with a similar issue in Hill v. Terminal R. Ass'n of St. Louis, 358 Mo. 597, 216 S.W.2d 487, 492, and the contention was denied. We have examined appellant's cases. In the Davis and Hogan cases the defendant was held not guilty of actionable negligence, and in the Deere case the injured employee was considered to have assumed the risk of injury and death as a matter of law. All involved facts arising prior to the amendment of August 11, 1939, abolishing the defense of assumption of risk; and, as stated in Mooney v. Terminal R. Ass'n, 352 Mo. 245, 176 S.W.2d 605, 609, the United States Supreme Court has pointed out that this amendment "also eradicated such phases of the defense of contributory negligence as had persisted in the guise of assumed risk." See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 64-67, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Owens v. Union P. R. Co., 319 U.S. 715, 719 et seq., 63 S.Ct. 1271, 87 L.Ed. 1683. The inquiry under the instant record is: Was the master actionably negligent?
There was ample testimony to submit the question whether the place where respondent was injured was illuminated. He testified it was dark; that there were no light standards or light beams in the immediate date vicinity, and no lights on the ground or marker lights with reference to the switch points. Other testimony established that floodlights were installed at places in appellant's yards, although not universally; that no floodlight was in the immediate vicinity of the place respondent was injured; that the switch mechanism was painted black and was black, and that painting it with a luminous paint would have caused it to glow in the dark.
Appellant further contends that respondent failed to establish that a reasonably prudent person operating appellant's railroad would have lighted respondent's place of work; and in this connection appellant also says there was no attempt to show that such lighting was practical, an issue appellant claims to be an engineering question, involving expert railroad operating knowledge and not one subject to the vagaries of juries.
Respondent's verdict directing instruction required the jury to find that appellant's switch mechanism was located with its southernmost point 9 inches above the ground and extending 4 feet south of the south rail of track 58; that said space was a place of work furnished by appellant to respondent; that the night was dark; that said mechanism was not lighted; that it was painted black; that there were no lights of any kind casting illumination on said mechanism at said time and place; that "by reason of all said facts and circumstances" said place "was dangerous and not reasonably safe," et cetera. This is a submission of common-law negligence, which depends on all the facts and circumstances. Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 416, 12 S.Ct. 679, 36 L.Ed. 485; Toeneboehn v. St. Louis-S. F. Ry. Co., 317 Mo. 1096, 298 S.W. 795, 801[2-6].
The submitted negligence does not rest solely with men having expert railroad operating knowledge, as appellant contends. Houston T. C. R. Co. v. Robins, Tex.Civ. App., 23 S.W.2d 461, 462[4], 465; Southern Pac. Co. v. Huyck, 61 Nev. 365, 128 P.2d 849, 857. Consult Murphy v. Wabash R. Co., 115 Mo. 111, 118(1), 21 S.W. 862, 863(1).
And, in considering an instruction to the effect, in part, that "the jury could find for plaintiff if it was practicable to have lights which would reveal the position of the switch and defendant negligently failed to have such lights," Derrington v. Southern R. Co., 328 Mo. 283, 40 S.W.2d 1069, 1072[7], certiorari denied 284 U.S. 662, 52 S.Ct. 37, 76 L.Ed. 561 states: "The evidence shows it was a dark night. As a matter of common knowledge, lights could have been placed somewhere high enough or suspended in some sort of position so as to show the position of the switch. If it was the custom, as testified to by defendant's witnesses, to leave the tracks aligned as last used, and if it was dangerous for cars backing in from the east on track B-6 and other tracks to be switched onto the cross-over, then it was for the jury to say whether the defendant was negligent in failing to have such lights. * * * But if there was no such custom, it was for the jury to say whether ordinary care required defendant to have lights so that operatives driving cars on B-6 would know how the switch was turned, and it was for the jury to say whether such lights were practicable." See also Lavender v. Kurn, 327 U.S. 645, 651, 66 S.Ct. 740, 90 L.Ed. 916, on the issue submitted against the Illinois Central R. Co.; Boston M. R. R. v. Cabana, 1 Cir., 148 F.2d 150, 152[7, 8], certiorari denied, 325 U.S. 873, 65 S.Ct. 1414, 89 L.Ed. 1991; Pearce v. Lehigh Valley R. Co., 3 Cir., 157 F.2d 252, 253[1]. Texas Pac. R. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905, states: "* * * what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." See Bimberg v. Northern Pac. Ry. Co., 217 Minn. 187, 14 N.W.2d 410, 413, certiorari denied, 323 U.S. 752, 65 S.Ct. 87, 89 L.Ed. 602. Under the above authorities the evidence presented a jury issue whether a reasonably prudent master would have marked the black switch operating mechanism in some manner, by illumination or otherwise, for the protection of servants discharging the duties of switchmen in its vicinity in the nighttime. Consult Tatum v. Gulf, M. O. R. Co., 359 Mo. 709, 233 S.W.2d 418, 422, on questions for the jury.
Appellant's cases, Brady v. Southern R. Co., 320 U.S. 476, 484, 64 S.Ct. 232, 88 L.Ed. 239; Kloetzer v. Louisville N. R. Co., 341 Ill.App. 478, 95 N.E.2d 502, 505, 506; Healy v. Central R. Co., D.C.N.Y., 35 F. Supp. 591; Raudenbush v. Baltimore O. R. Co., 3 Cir., 160 F.2d 363, 367[4, 5] are distinguishable. For instance: The Brady case (a five to four holding) and the Healy case involved facts arising prior to the 1939 amendment to the Act. The lighting of a derailer on a storage track where an automatic block system functions, involved in the Brady case, differs from an obstruction where switchmen have occasion to perform their work in switch yards in the nighttime.
Under respondent's affirmative testimony as to what caused him to trip and the surrounding circumstances, whether the submitted negligence of appellant proximately contributed to cause his fall and injury was clearly for the jury.
The judgment should be and is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All concur.