*1 Henry C. J. Scandrett, Cummings, Arnold Walker Charles George Chicago, Milwaukee, I. Trustee of the Paul St. Haight, Company, Appellants. & Pacific Railroad 542. One, September 14, Division 1939.* Morrison, Nugent, Berger, Byers Johns, Nugent & James E. Byers appellants.
Chas. C. Opinion May Term, 1939, 14, 1939, at *NOTE: filed June motion for rehearing filed; July 7, 1939; motion overruled transfer motion to Court filed; September Term, September 14, en Banc motion overruled *2 Gross, Gerald Pross Cross, T. Ernest Ilubbell and Platt Ilubbell for respondent. BRADLEY, C. Action under Employers’ Liability Federal (45 Act A., U. S. C. sees. 51 et seq.) personal injury. The cause Grundy was filed in County, but the changed venue was to Clinton n County. verdict judgment ($15,000) (The went for appealed. defendants Plaintiff was a member of a section injured crew and was (rup- tured)’ in putting a motorcar on the track from a setoff. The alleged (1) carry, failure to on the motorcar, a turntable with which the motorcar could be removed from and back the track with safety more than the method (see infra) ; (2) ordering requiring (through used foreman) plaintiff place and other members of the crew to the motor- reasonably car on the track a not a safe method reasonably safe; (3) negligence part on the the foreman in failing position (de- to observe the of the wheels on the infra) being placed track, scribed as the motorcar was on the failing same;” (4) to warn “with reference to the Eeynolds failure to remove the motorcar from the track at the farm crossing (used crossing a setoff), 1700 feet east of the setoff used. general contributory
The a denial, risk, answer was assumption of negligence, solely and a plea plaintiff’s injuries caused negligence. reply general his own denial. charges jury alleged went to the on all the cause
except turntable, Eeynolds failure farm and on the to use the crossing. *3 assigned (1) refusing
Error is on a demurrer to the evidence at case; (2) instructions; (3) the close of the the on admission of evidence; (4) argument counsel; (5) and an on conduct and alleged excessive verdict. properly
It is in effect conceded that the case is under the Fed- railroad, at place injury, eral act. The the runs northeast and southwest, running but is in the record east and west. considered as section, worked, The on which extended about eleven miles Walker, east from The section crew consisted of James Chillicothe. foreman, plaintiff, brother, Harry Arnold, the plaintiff’s motorcar, Phillips. gasoline weight J. L. The crew used a the pounds, going 1000 or 1100 over the section. was about injured, miles Plaintiff was about one and one-fourth east Chilli- cothe, putting the motorcar on the track from 688, and, setoff, bridge west of 1700 feet about feet Eeynolds crossing. July 15, 1936, west of the On the crew came from east, Eeynolds crossing; passed bridge, the the passed put the back; the off on the Then crew walked cut a setoff. the fireguard bridge; ready under the did some track work and was then go the motorcar back on the track and in. track was put The embankment, the used was on the south side of setoff an .track, eight feet in width and extended back south the and was about out on the or fourteen feet. The ballast extended twelve of the feet from the rail. The remainder setoff five and one-half six dirt. The rails extended inches setoff surface was cinders and only ties, up top came the of the ties above the and the ballast July August, inside and outside the rails. Prior to or both boards, provided this setoff and others had been between runways, rails, extending up top thereof, and board out on setoff, extending high July August, or rails. up as the gravel put down new gang removed the old ballast 1935, an extra boards, the rails doing new ballast between ballast. runways, setoffs, removed. at were and the setoff, back on the track from the the foreman put the motorcar To These (crowbars) be used as runners. that two directed length. handle end five and one-half feet bars were diameter; inches and about one and one-fourth round by placed the foreman wedge shaped. The west bar was end was other, each ends, handle even with Phillips. east one extended back south rail, and the bars were on the ball of setup the and the side rested on the setoff surface. With flat the track. The front crew commenced to motorcar on corner; the motorcar faced Plaintiff was at the southeast north. corner; the northwest Phillips at the southwest the foreman brother, Harry Arnold, at corner. corner; plaintiff’s the northeast Phillips Plaintiff and faced north and the foreman and Those, and those pushed brother faced in the rear lifted and south. pulled. in front
The distance the motorcar between the front and rear wheels' of was such that the rear wheels would reach the bars before front Phillips wheels that he and went over said motorcar so that directed the foreman' to lift the rear of the bars, the rear in contact with the and that wheels would not come This, according protect such was done. pulley rear, wheel under which wheel was connected engine with the at the front. Plaintiff testified that as the belt forward, bar, way, motorcar went the east some moved about six inches and that the west front wheel of the motorcar rails, down to the east front ballast between the before.the *4 did, wheel when the front wheel down the west suddenly him upkicked southeast corner of the motorcar struck right in the abdomen, resulting inguinal lower in a hernia. No direct ' changed one saw the east bar move forward. Plaintiff its noticed position placed after the when he motorcar was on the track and picked up put this bar it the motorcar. Plaintiff said that the to resting ends of sank down into the-bars on the surface of setoff ground, his feet sank down three or four inches while lifting pushing, up the bars. fore- as motorcar went Phillips man and testified that the rear of the motorcar was not up bars; lifted as it went and to the effect that the left front go wheel did first; drop over and down that there was no sudden wheel; the west front that the front the motorcar was eased testify. down. Plaintiff said that he Plaintiff’s brother did not by felt a sharp pain upkick, he and that while when was struck riding blind,” he the motorcar into Chillieothe “felt sick “got my stomach,” say blind and sick at he did not then but anything getting about hurt or how he felt. He worked the about day; tamped next “raised track and ties.” taking
Plaintiff testified that he had never assisted in the motor- placing car off or it on the track from setoff in the condition injured. stated, prior ballasting when he to the was was As runways, all the setoffs had boards between the rails and board setoffs, section, being at least on this restored to their original them, get condition as the foreman found it convenient to got but he said that he had not to this one.
Henry Walton, a witness for that he had worked testified many years laborer; aas railroad track had been section foreman years; on the Island; Burlington Rock had been with the ten about experience building taking had setoffs and in motorcars off and placing them Walton, track as an expert, setoffs. testified not, the effect that four men safety, put could with reasonable words, the motorcar on Walton, the track from this setoff. expert, as an reasonably Also, testified this setoff was not safe. Walton testified that the manner in which the motorcar placed was on the track reasonably safe, from this setoff was not and that was the duty give warning foreman’s anything wrong if went with being bars as track. Felix moved Shaw, many years who had had experience in track testified general to the same effect as did Walton.
The demurrer questions, the evidence raised three viz.: Did plaintiff assume solely the risk? injury Was due to his own negligence? and Were negligent defendants was sub- mitted ?
Plaintiff testified that he had worked on sections for various rail- for years, roads about fifteen and had worked on the section foreman Walker years six prior injury; to his and “was familiar with what” had been done to the in placing setoffs the new ballast; that he had assisted in “motorcars on the back track of lining times, use 1935; bars” different all five that, instance, in each back on the track men, four lifting “two men pushing the back end.” In these eases, that, he over, said when the drop front wheels went only “a couple or three inches.” Plaintiff taking assisted in off the track motorcars and in placing it on the setoff injured, where he was and therefore knew the condition of the setoff. A., U. S. C. provides “every common carrier engaging
railroad while any in commerce between of the several *5 States . . . damages any shall liable in person suffering to injury employed by while he is such carrier in such commerce, . . . resulting in negligence whole or in part any from the of of officers, the agents, or employees of snch carrier. . . .”
120 any against “in provides brought of action 54 the act
Section any the provisions under or virtue of of of any carrier common of, injuries to, any or the damages for death to recover chapter ‘to not be held have assumed employee shall employees, such of its of such any case where the' violation in employment of his the risks the'safety employees any statute enacted-for carrier of common ' employee.” such injury to or the death contributed brought Lia ruling Employers' under the Federal cases Supreme opinions are and decisions of the we bound bility Act Williams, 43, v. 254 41 the United States. U. S. Court [Prior Ry. 120; Missouri, 36, 65 Ed. Rowe v. Kansas & Texas Sup. L. Ct. 1145, (2d) arising “In cases under Co., Mo. 100 S. W. 339 480.] Act, Liability Federal hold‘ that 'the courts Employers’ the Federal all entering upon employment, a contract of assumes ah employee, ordinarily employment, his dangers incident the risks extraordinary employer’s risks caused also fully appreciated the employee known to which are obvious presumed to knoY by him, plainly that he must be or so observable 1107, (2d) Ry. Co., 325 Mo. 30 W. Wabash S. them.” [Martin Ry. Co., 338 735, 742; Chicago, R. & P. Mo. l. c. McDaniel v. I. 481, (2d) 118, 120, W. l. c. there 92 S. cases cited.] 594, Mo. W. Assn., 339 98 S. In Williams v. Terminal Railroad hand) working (2d) 651, “plaintiff (a a section engaged eight crew, cutting piece á from a steel rail or four-foot long. this, rail nine feet To do of the men steadied the some against each end with claw foreman held chisel' the assistant sledge man struck it with a hammer. another While plaintiff fail, a helping steady piece of steel flew into his ” eye one of men It was that the when struck the'chisel. held ’ plaintiff assumed the risk. Blackley (4th (2d) 457, et Fed. Cir.), v. Powell al. plaintiff and, was a engineer, preparing locomotive for airun unguarded yards. at 2 fell pit into an turntable m., A. charged adequate lights, maintain was failure to “and then engine inspect was first to operate, unguarded pit near the course of unwarily his inspection, fell it.” It into was held 459) (68 assumed the c. risk. court said Fed. l. : only normally “. dangers . . the employee assumes not necessarily incident to occupation, his but also risks of another sort naturally arising the occupation incident to out the failure 'but employer exercise due care to a safe furnish provided employee that the has become aware of the defect and the arising citing Ry. risk it,” Horton, Seaboard Air Line v.Co. 492, Sup. 1915C, U. Ct. 58 L. L. R. 1, A. Ed. 1915B, Ann. Cas.
121 Ry. (Mo. App.), v. St. Francisco Co. Heath Louis-San 286 injured lifting- 148, plaintiff W. was -a hand and ivas from in a the track. The crew con assisting putting while .on motorcar foreman, including plaintiff. It men, and three was the. sisted necessary pass. motorcar track so a train to move the could a number negligence -upon was to furnish- sufficient relied failure handling men, in negligence fellow servants of. weight and the plaintiff, that most of the on was .thrown so- ordering plaintiff negligence -in to do .of-the foreman the work injured. which he was - twenty .prior months -had worked the section i : Plaintiff ox*, alleged injury.- placing to-ihis The'.manner method..used by. plaintiff
motorcar on track was as follows: described the. car, “Part of one while the us would us end of the rest of would-lift trying it, then down on-the-.other end like to balance we were Rear we would other, end, while lift our fellows the. would'bear down their lifted, end. When either end was would be moved forward then, go, as it we end and would that .far bear..down on. would ” other, lift the and move forward. end : entirely appears plaintiff It in the Heath that fa- case was doing miliar with he injured. the work was when he was had had He years work,” three and expei’ience one-half “in that kind of during all time that that he handled motorcars such he one wag'assisting in'placing injured. 'on the track held that when It'.was he assumed and could the risk not recover. Davis, Boyet 217 Mo. App. 513, plaintiff foreman, a section hand. The section crew consisted of the injured (ruptured) and two other men. Plaintiff was ’ removing the track. The from. relied on was failure to furnish a number of to- do sufficient men the work, negligence of the directing foreman in that the motorcar existing, plain- removed circumstances under care., failing tiff’s fellow reasonable him servants use to assist removing the motorcar from the track. Plaintiff in that case de- his-injury manner as- the wheels scribed-the follows: “When The,car dropped ruptui*ed jar, car down the me. made'-a sudden whe,n weight jerk, sudden a sudden on me. It'was the car down from the rails the ties—that’s when: it me-to be caused n . ruptured.” .... Boyet many years It appeal’s in the case had had entirely experience in a familiar section crew with appeal’s entirely motorcars on track. Aiid it further that he capacities familiar with the of the men whom he worked as to working their qualities, etc. It was held he assumed the risk and could not recover. ease,
As in ‘the present testified sank into the surface the setoff. If of the ends south likely ease, the east bar was less to have moved then such was Also, into the surface of the setoff. if it had not sunk forward, than right contrary law that the front wheel of the physical it is *7 run rear end motorcar, in the manner pound part remained elevated on that of the east have up, lifted would beyond extending after bar the left front wheel passed the rail and down ballast. v. Alton had over [Dunn (2d) 311, 314, 104 W. l. 1037, Mo. c. Co., Railroad cases there cited.] risk, dealing prevails as it assumption the rule
Under Liability Act, we are constrained Employers’ under the Federal cases and cannot recover. the risk assumed to rule necessary not be to rule Reaching will the conclusion it is assignments. judgment should reversed and Hyde Dalton, CG., concur. ordered. C., adopted foregoing opinion is PER CURIAM: The Bradley, J., Hays, P. judges concur, except All the opinion
as the the court. absent. City Cape Girardeau, Municipal v. The
Valentine Fischer Appellants. H. L. Corporation, and Coffman, 521. 14, One, September Division 1939.* 7, 1939; May Term, July Opinion filed at motion for *NOTE: September Term, September rehearing filed; motion overruled at