This wаs an action brought by appellant to recover damages for injuries suffered by him while in the employ of ap-pellee. We shall refer to appellant as plaintiff and to appellee as defendant. The defendant is a railway corporation operating as a common carrier in interstate commerce and at all times pertinent to this action was the owner and operator оf the terminal facilities at St. Louis, Missouri, for all common carriers operating into, through or out of that city.
At the time of receiving his injuries plaintiff was employed by the defendant as a car inspector and repairman in its railroad yards at St. Louis, Missouri. The case has been tried three times. On the third and last trial plaintiff filed an amended complaint which in substance charged as acts of negligence as the basis for recоvery that on December 29, 1950 plaintiff was engaged in the course of his employment by defendant in inspecting brake shoes and making an air test on passenger cars of the Wabash Railroad Company which other employees of the defendant had previously placed in the coach yard and were subsequently to remove and that the defendant negligently allowed and permitted the air brake hose and the steam pipe on each of two of said cars to remain uncoupled and in a position where steam was escaping from the steam pipe between the cars at a time when the weather was below freezing and as a direct result of such negligence ice formed in and upon the couplers of the air hose and wholly or partly as a result thereof plaintiff was unable to make a secure сoupling of the air hose by reason of the existence of ice in and on such coupling so that they burst apart, struck and injured plaintiff. This complaint was an amended and substituted complaint in that it did not by reference or otherwise embody the allegations of the complaint as originally filed. The defendant by its answer denied each and every allegation of the amended complaint except as admitted and it admitted the jurisdictional allegations, admitted that at the time of receiving his injuries plaintiff was in its employ as a car repairman but denied that it was guilty of, any negligence and affirmatively pleaded that whatever injuries plaintiff sustained on the occasion mentioned in his amended complaint resulted solely from or were caused by plaintiff’s own negligence.
At the time of the accident resulting in plaintiff’s injuries plaintiff was an experienced machinist having been employed by the St. Louis-San Francisco Railway Company for thirty years and by the defendant for some eighteen months. On the day of the accident he began working at 12:30 a. m. His first job was to replace worn brake shoes and to make minor repairs on the Wabash Blue Bird passenger train and check the equipment for air and steam leaks. This Blue Bird train when it arrived in the yards at St. Louis was carrying аn extra car between the dining car and the observation car. Prior to the time plaintiff inspected the train this extra car had been cut out and the cars had been re-coupled. The hose connecting the air brake line and the hose connecting the steam line had, however, not been con *758 nected and there wás escaping steam from the' disconnected end of the steam line hose. The temperature stood at about twenty degrees above zero and there was ice accumulated on the coupling heads of each of these disconnected hose. Plaintiff in discharge of his duty as a car inspector and repairman entered between the cars where the hose were disconnected and exposed and with his hammer knocked the ice off the head of each . of these еxposed hose and connected each with the hose of the car immediately ahead of it.- After connecting the steam hose and air brake hose between the two cars he proceeded westwardly along the train blocking each car as he went and when he arrived at the westernmost end or the head end of the train he hooked the steam line from the yard to the train so that the whole train wоuld have steam on it. He then went to the easternmost or rear end of the train blocking cars as he went and hooked the air brake hose of the train to the air line in the yards and turned on 110 pounds of air pressure. He then returned to the space between the dining and observation car and observed a leak in the steam hose connection between these two cars. While he was attempting to tighten the steаm line coupling which was leaking the air brake hose connection separated striking him on the knee.
The facts will be further developed in the course of this opinion. At the close of all the evidence defendant moved for a directed verdict on the following grounds: (1) That the evidence was not sufficient to sustain any allegation of plaintiff’s complaint against defendant; (2) That the evidence fails to establish any violation of the Safety Appliance .Act, 45 U.S.C.A. § 1 et seq.; (3) That the evidence fails to establish that the air hose coupling came apart by reason of any negligence on the part of defendant; (4) That the evidence proves that the air hose coupling came apart solely by reason of plaintiff’s negligence; and (5) That the evidence proves that plaintiff failed to put the air hose cоupling together properly and securely and that he knocked it apart with a hammer. The court deferred passing on the motion for a directed verdict and sent the case to the jury. The instructions are not to be found in the record before us and, hence, will be assumed to be correct in every respect. The jury failed to agree and was in due course discharged. Thereafter defendant made a motion for judgment in accordance with its motion for directed verdict. The court granted defendant’s motion and entered judgment dismissing plaintiff’s complaint on its merits and from the judgment so entered plaintiff prosecutes this appeal seeking reversal on substantially the following grounds: (1) The court erred in directing a verdict for the defendant and entering judgment for the defendant and dismissing plaintiff's complaint upon its merits. There was substantial evidence to support the hypothesis that defendant negligently set cars in its yards in cold weather with the air and steam lines disconnected so that ice formed on the air brake hose coupling causing it to burst apart and injure the plaintiff; and (2) The court erroneously excluded from the case certain evidence adduced by plaintiff and establishing that ice in the locking mechanism of the air brake hose would cause it to burst apart under pressure.
We shall first consider the action of the court in withdrawing from the jury’s consideration a piece of hose and testimony with reference thereto, the hose not having been introduced in evidence. In the course of the trial plaintiff called one McCauley as a witness who testified with reference to the two. pieces of hose that had been introduced in evidence. He testified with rеference to these hose, using them by way of illustration, that the hose was in two parts, each part being equipped with a “head”, with a “lip” on one head and a groove on the other and the coupler of the hose was locked together by fitting the lip into the groove. Plaintiff’s counsel marked the lip and groove of the coupler with chalk and the witness put them together and explained to the jury
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that the loсking of the coupler by fitting the lip into the groove would prevent the heads from pulling apart on lateral movement and further testified that if the coupler “was wore to the point that there was no tongue-and-groove left, or if the head of the hose is spread apart in some way, then it would pull apart.” After having been excused the witness was recalled as plaintiff’s last witness. When recalled counsel for plаintiff produced a piece of hose similar in appearance to the two pieces of hose that had been introduced in evidence and interrogated the witness with reference thereto. He did not announce to the court nor to opposing counsel that the hose so produced was not one of the pieces of hose already admitted in evidence. Ordinarily the only testimony admissible with reference to this piece of hose would have been testimony for the purpose of laying a foundation for its admission in evidence. It is elementary that a witness may not be interrogated with reference to a physical exhibit which has not been admitted in evidence and it is perfectly manifest on the record that neither the court nor opposing counsel knew that this so-called exhibit had not been previously admitted in evidence. This physical exhibit though entirely foreign to the record was exhibited to the witness and to the jury and it was shown that there was in the groove an obstruction consisting of certain metal and the witness was interrogated with reference to the effect the presence of such a substance might have in making a secure coupling. Following the closing of the testimony counsel for defendant in the court’s chambers made known to the court that this piece of hose was not one of the pieces that had been introduced in evidence and contended that it had been improperly used for demonstration purposes. The case was thereupon reopened and defendant’s motion to strike all evidence that had been introduced with reference to this piece of hose was sustained. Plaintiff did not attempt to reoffer any part of the testimony so stricken. In support of its motion to withdraw the exhibit from consideration of the jury and to strike the testimony with reference thereto counsel for plaintiff was called as a witness and, among other things, testified that when he first called Mr. McCauley to the stand he made use of two certain couplers or two pieces of air hose in making certain demonstrations and that when he called Mr. McCauley back to the stand he produced one of those two original pieces and a third and different piece of air hose which he used for another demonstration ; that the third piece of air hose had not previously been used in the ease; that when he produced the third hose he did not announce that it was a different one; that the flange on the lip of the third air hose had been filled in with metal at his direction; that before using it he did not advise the court nor opposing counsel that it was a different air hose from the one he had been using; that he picked it up from the floor under the table and that “I did not make any statement to you or His Honor, or to Mr. McCauley or to the jury, or anyone, that I have a third air hose here”; that in having the lip of one connection filled with metal, “I acted upon my own suggestion.” The locking mechanism in the third piece of hose had been so altered by inserting a foreign piece of metal therein as to render it ineffective and wholly unlike the actual condition of a normal locking mechanism. We think the court on its own motion would certainly have been warranted in taking the action which it did. The third piece of hose in its altered condition would certainly be deceptive and misleading. 32 C.J.S., Evidencе, § 607, p. 457. The evidence was not properly admissible but this was not made to appear until subsequent to the time it was offered and in such circumstances it was proper upon motion subsequently made to strike it from the record. Specht v. Howard,
To entitle a plaintiff to recover in an action brought under the provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., the burden of proof is upon him to prove the
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carrier guilty of negligence and that such negligence was the proximate cause in whole or in part of his injuries. Wolfe v. Henwood, 8 Cir.,
But we think thе evidence is insufficient to sustain a verdict for plaintiff for another reason. This plaintiff was according to his testimony a car inspector and repairman. As such it was his duty to make such repairs on these hose as was necessary to allow them to couple safely. This mechanism, it may be said, was in bad repair when he went on duty and it was his job, and his alone, to make the necessary repairs. There is no claim that during thе time he was making the repairs the defendant failed to furnish him with proper tools or failed to furnish him with a reasonably safe place to make the repairs or actively did anything that resulted in his injuries. A mechanic could not, we think, be heard to complain that it was the negligence of his employer that caused the mechanism to get out of repair. It might be said that there would be no occasion for the mechaniс to perform any duty if the mechanism were not out of repair. By analogy we may consider the case of an automobile mechanic. The owner of a car through his own negligence has had a collision resulting in damage to the car. The mechanic is called to repair it. If injured in so doing he certainly could not attribute the original negligence of the owner of the car as the proximate cause of his injury. So in the instant case, if there was any negligence on behalf of the defendant in failing to connect up the hose in controversy earlier than it did that would not be the proximate cause but would simply furnish the opportunity for the infliction of injuries. Fraser v. Chicago, R. I. & P. R. Co.,
The claim that this court in the first appeal in this case, Barnett v. Terminal R. Ass’n of St. Louis, 8 Cir.,
We have given careful consideration to all the other contentions urged by plaintiff on this appeal and are of the view that they are wholly without merit. The judgment appealed from is therefore affirmed.